Conflicts in protected characteristics

Conflicts arising in respect of different protected characteristics have come to the fore in a number of recent high profile cases, particular in the context of sex, sexual orientation and gender critical beliefs. In this podcast we discuss recent cases in this area, including Higgs v Farmor’s School and Maya Forstater v CGD Europe. An area which is also a cause for concern is the difficulties employers have in policing workplace conversations and adopting a zero tolerance approach to conversations that may cause offence to others.

The sensitivities surrounding many of the reported employment tribunal cases have led to mainstream news headlines and perhaps this is one of the reasons that employees are becoming much more aware of their rights to voice their views and the potential limitations on employers to limit discussions and moderate behaviours.

Conduct of employees causing offence to others is often dealt with by disciplinary action but since the Equality Act introduced religion or belief as a protected characteristic in 2003 employers have had to be mindful that any disciplinary action or other treatment does not amount to discrimination based on that individual holding that protected belief. Initially most cases focused on religion as the definition of “belief” was less clear.

Criteria for protected beliefs following case of Grainger

The Grainger case in 2010 established robust tests for a protected belief and following Grainger a number of beliefs tested in the courts failed the test of being worthy of respect in a democratic society.

The case of Maya Forstater v CGD Europe, concerning gender critical beliefs, revisited what a belief could be and determined that only beliefs akin to Nazism and totalitarianism or those supporting violence and hatred would fail the test of being worthy of respect.

It is not a leap to say that Forstater widened the Grainger test but also gave the green light for those who had perhaps been cautious about sharing beliefs at work to be feel more able to do so.

That has created an unenviable position for employers as to what their responsibilities are in policing employee communications, including social media communications, as was seen in the Higgs v Farmor’s School claim.

In Higgs the Claimant shared on their personal Facebook account allegedly homophobic and prejudiced posts and was dismissed for gross misconduct. The question was raised as to whether the Claimant was manifesting a belief in an objectively objectionable manner and if so was the employer’s treatment because of the Claimant’s protected belief as opposed to the objectionable manner in which it may have been raised?

Workforce challenges for employers and HR

Do HR need to be more vigilant in recognising the tensions created by staff holding different views? Seeking to create a workplace which is supportive and inclusive for all brings challenges where not all protected characteristic and views are shared.

Challenges are also presented where senior leaders express personal opinions in the work place as was seen in Fahey v  Arts Council. To what extent do employers need to adopt a different approach to the expression of beliefs by the senior leadership to that expected from other staff?

Many employment policies reference a “Zero tolerance” disciplinary approach to the expression of views that may be considered to cause harassment. However this may not always be the correct approach where different protected characteristics are involved and the binary approach may need a re-think as a result of some of the recent cases.

For more information about any of issues covered in this update, or if you are an employer or employee needing further advice, please get in touch with one of employment solicitors today.