Employers should keep a watchful eye on the steady stream of cases challenging the boundaries of the protection for philosophical and religious beliefs. Employee activism and use of social media mean the potential for a clash of opposing beliefs in the workplace will only increase; a considered, sensitive response that does not take sides will be key to avoiding claims. Employers may also wish to consider or review staff policies on expressing views on social media and in the workplace.
- Recent rulings in Forstater and Mackereth have established that gender-critical beliefs can be protected beliefs, including a limited right to express those beliefs (whereas objectionable manifestations such as intentional misgendering will not be protected) – see here. A first instance tribunal in Bailey v Stonewall Equality, Garden Court Chambers and others has now ruled that the protection extends beyond the core gender-critical belief (that women are defined by biological sex rather than gender identity) to also cover a belief that gender theory as promoted by Stonewall is severely detrimental to women (including that it denies them female-only spaces) and to lesbians (in that it labels them as bigoted for being same-sex attracted). Expressing hostility to Stonewall campaigning on the basis of gender self-identity did not seek to destroy the rights of others in a way that would not be worthy of respect in a democratic society. Garden Court Chambers’ knee-jerk reaction to complaints about the claimant’s gender-critical comments, tweeting that it would launch an investigation and subsequently concluding that she had likely breached Bar Standards, was held to be unlawful belief discrimination.
- In contrast, in McClung v Doosan a first instance tribunal rejected a claim that supporting Rangers football club could be a protected philosophical belief. A desire that a particular team do well did not concern “a weighty and substantial aspect of human life”, the variety of fan behaviour meant that there was insufficient cogency, cohesion and importance to the belief, and it did not invoke the required degree of respect in a democratic society. (The claimant did not seek to bring a religious discrimination claim.)
- In Scottish Federation of Housing Associations v Jones the claimant’s employment contract included a political neutrality clause and she was dismissed after having requested (and been denied) permission to stand as a candidate for a political party in the general election. She claimed unfair dismissal on the ground of her political opinions or affiliations (which does not require the usual two years’ service) and belief discrimination. The EAT held that the dismissal allegedly for refusing to comply with a political neutrality requirement was not ‘related to’ her political opinions or affiliation to a political party; the unfair dismissal legislation was intended to cover dismissals because of the content of a person’s political opinions or the identity of the party they support, and not because of a lack of neutrality. However, the claimant’s belief that ‘those with the relevant skills, ability and passion should participate in the democratic process’ if democracy is to thrive was a protected philosophical belief for the purposes of a discrimination claim.
- In Wierowska v HC-One Oval, the tribunal ruled at a preliminary hearing that a care-home worker’s opposition to the Covid vaccine was sufficiently closely linked to her longstanding Catholic beliefs to be a protected religious belief, notwithstanding the Pope’s statement that having a vaccine was morally acceptable. There is no requirement for a religious belief to be part of the mainstream or orthodox view taken by a particular religion in order to be protected. Her concerns were linked to the longstanding Catholic position on abortion and the medical use of stem cells or foetal material and were part and parcel of a fundamental view about the sanctity of human life. She also believed that the vaccine might alter her blood cells which would be contrary to her religious belief that the body is the temple of the Spirit and should remain unadulterated. Her ‘stubbornness’ in rejecting medical evidence on this only went to support the argument that she held a religious belief which was not open to debate.
For further information, please contact:
Anna Henderson, Herbert Smith Freehills
anna.henderson@hsf.com
