25 May, 2017
One consequence of having diverse workplaces is that it brings people from different walks of life into close contact with each other. This can cause tension and conflict, and puts employers in the difficult position of having to keep each person or group happy and productive at work, all the while protecting their rights and liberties so as to manage the risk of claims or litigation. This can be particularly difficult where interpersonal conflicts in the workplace involve people who have protected characteristics.
One example of how rights and interests can conflict is when employees have different religious views. In many jurisdictions, freedom of religion is an individual right and a protected characteristic under anti-discrimination legislation (see Table 1).
Table 1: Summary global comparison of elements of anti-discrimination laws
One way of balancing competing interests is to try to draw a line between employees' private expressions of their religious belief, and their conduct and appearance at work. Whether employers can require employees to moderate their behaviour in the workplace in this way has been the subject of much litigation.
Last year the UK Employment Appeals Tribunal decided a case in which the right to express religious beliefs was a critical issue (link). The case involved a complaint by a Muslim junior employee who alleged that an evangelical Christian senior employee had tried to impose her religious views upon her by inviting her to attend church services, praying with her and, on one occasion, laying hands on her. The junior employee said that the same colleague had given her a book about a Muslim woman who had converted to Christianity. The employer followed a disciplinary procedure and found that the senior colleague was guilty of serious misconduct. The senior colleague then brought a claim against her employer for unlawful discrimination and harassment relating to the manifestation of her religion.
The Tribunal found that the employer was justified in its actions. The superior had not been subjected to disciplinary proceedings because she manifested her religious belief, but because she had subjected a subordinate to unwelcome and improper pressure which went substantially beyond "religious discussion". The Tribunal upheld this decision and found an individual's right to freedom of religion does not give them "a complete and unfettered right to discuss or act upon their religious beliefs at work".
Right to restrict religious dress at work?
More recently, the case law on these issues has been developed by two decisions of the Court of Justice of the European Union (CJEU). In these decisions the CJEU considered whether an employer can lawfully dismiss employees for wearing religious dress at work.
A Belgian experience
In one case, a Belgian employee was dismissed for wearing an Islamic headscarf in breach of the employer's policy of "neutrality". The CJEU held that this was not direct discrimination because the employer's policy applied to all manifestations of religious or political belief, and it was applied fairly and equally among employees. The policy could have been indirect discrimination, but the CJEU found that a policy of neutrality was capable of being objectively justified because "the desire to display, in relations with both public and private sector customers, a policy of political, philosophical or religious neutrality must be considered legitimate". The case has been remitted to the national court for consideration of whether dismissal of the employee was necessary, or whether for example the employer could have redeployed her to a non-customer facing role.
A French experience
The other case concerned a French employee who was also dismissed for wearing her headscarf after she attended a customer's site and the customer complained that her wearing the headscarf "embarrassed" his staff. The CJEU made clear that a customer's wish not to have services provided by a headscarf-wearing employee could not be a "genuine and determining occupational requirement" which would allow an employer to justify direct discrimination.
Together, these cases suggest that under EU law, while an employer cannot legitimately impose religious dress restrictions on a particular employee in response to a customer complaint, an employer can pre-empt customers' concerns about employees manifesting religious or political beliefs at work by adopting a policy of "neutrality". Such a policy will likely be acceptable under EU law if it is applied fairly, equally and only as widely as is necessary. The CJEU's willingness to accept a policy of "neutrality" as a legitimate objective is in some ways a surprising outcome because it runs against the grain of diversity being an acceptable and, indeed, positive policy for a business to adopt.
UK, Spain, Germany and Australia – a different outcome likely
We suspect that courts in other countries may reach a different conclusion. For example, a UK court would probably be less inclined to find that a policy of neutrality is necessarily reasonable and objectively justified. In the UK, where courts have recognised the importance of freedom of religion, an employer would likely have a difficult task convincing a court or tribunal that employees wearing religious symbols would, in fact, have a negative impact on the business and that any such impact should trump employees' rights to practise their religion. Similarly, in Australia, Spain and Germany, it may be difficult for an employer to show that neutrality is indeed an inherent requirement of the job or a genuine business requirement.
However, the above CJEU ruling may influence case law in European jurisdictions.
In contrast, in Japan, rules of employment are unlikely to be struck down by reason of religious discrimination unless the relevant measure clearly targets a specific religion (although the employer can be subject to liabilities under the employment agreement or tort liabilities).
Can employees rely on a defence of freedom of speech?
Diversity of people usually brings with it diversity of views. Not all views are ones which employers will want to endorse or be associated with. Where an employer disciplines an employee for something they have said about or to another employee (or to the world at large, in cases of social media misconduct), an employee may seek to challenge disciplinary action on the basis of an alleged right to freedom of speech.
In some jurisdictions this is a more established right than in others (see Table 1). For example, in the UK, the Employment Appeals Tribunal has endorsed taking an employee's right to freedom of expression into account in determining the remedy for an unfair dismissal claim, but did not accept that any restriction on an employee's freedom of expression would render a dismissal unfair (see Hill v Governing Body of Great Tey Primary School).
In a recent Australian case (Chief of the Defence Force v Gaynor), a member of the Australian Defence Force was dismissed after he made public comments about homosexual people and Islamic culture, which were published on his personal web page, Twitter and Facebook accounts. The Full Federal Court confirmed that the implied freedom of political communication was not a personal right. The regulation conferring the right to dismiss was adequate in balance and did not sufficiently impinge on that freedom.
Freedom of speech is also the subject of a live political debate in Australia, particularly in relation to section 18C of the Racial Discrimination Act 1975, which prohibits acts done because of the race, colour, national or ethnic origin of another person or group if the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate the person or group.
In Spain, any verbal offences to the employer, its staff or their relatives constitutes a breach of contract and can be sanctioned with disciplinary action, including dismissal. According to the Spanish Constitutional Court, freedom of speech includes the right to criticise and raise an opinion provided that these comments are not offensive and unnecessary, and are based on solid facts. In employment conflicts, some expressions which would not necessarily be protected in other contexts could be protected by freedom of speech. However, the use of insulting, degrading or offensive terms is not protected.
Despite the ongoing political debate, the limits of free speech tend to be fairly clear in the workplace. Conduct which is offensive or involves harassing other employees is likely to constitute misconduct and a breach of the employment contract. Rarely, in our experience, can an employee rely on any alleged right to freedom of speech in order to defend conduct which involves bullying, harassing or vilifying another person.
For further information, please contact:
Jon Lovell, Partner, Ashurst
jon.lovell@ashurst.com
