A run of recent tribunal and EAT cases highlights once again the challenges facing employers dealing with the expression of protected beliefs in and outside the workplace. A key takeaway is the importance of employers avoiding knee-jerk reactions, of investigating thoroughly and not simply assuming that, because some people have taken offence at the expression of a belief, it is necessarily correct to treat it as objectively offensive. Any disciplinary action for an objectionable manifestation of protected beliefs will need to be proportionate in all the circumstances; employers should always consider whether sanctions less than dismissal might be appropriate and should ensure a consistent approach is taken to similar cases. It is also important not to ‘take sides’ on a controversial issue: beliefs on both ‘sides’ are likely to be protected and harassment of those holding them unlawful. Misrepresenting a person’s beliefs as advocating hatred for or the removal of rights from a particular group may itself amount to harassment of that person. Employers should not condone abuse or harassment of any employee and should provide support to those suffering, whichever ‘side’ of the debate they are on. Employers will need to keep policies covering social media use and harassment under review and put appropriate moderation of internal channels in place. Employers will also want to keep a close eye out for the Court of Appeal’s decision in Higgs v Farmor’s School, due to be heard in October 2024.
In Phoenix v The Open University, the employer was held to have discriminated against and harassed a university professor for her gender critical beliefs when it failed to protect her from a sustained campaign by colleagues against her. Professor Phoenix set up and participated in an academic research network promoting research into sex, gender and sexualities from a gender critical perspective. In response, an open letter was published by more than 360 colleagues calling for the research network to be closed down (claiming that it was transphobic and hostile to the rights of trans and non-binary persons) and in effect encouraging a ‘pile on’ of the public to put pressure on the university. The tribunal held that this constituted unlawful harassment on grounds of the professor’s protected belief. The university did not shut down the network, but neither did it do enough to protect Professor Phoenix from harm to her professional reputation and mental health – she had received death threats, been called names and felt ostracised, silenced and bullied. The university issued a statement expressing concern about the network causing harm to trans people but did not acknowledge any harm to the professor or members of the research network, and it refused to remove certain online statements which wrongly described the research network as a hate group and the professor as transphobic. She raised a grievance about her treatment but the university failed to investigate possible breaches of its social media policy or consider disciplinary action against the alleged perpetrators. The university’s decision to terminate the grievance process once Professor Phoenix had resigned and submitted her first tribunal claim was in retaliation for that claim and therefore unlawful post-employment victimisation.
Similarly in Meade v Westminster City Council and Social Work England the tribunal found that the employer had wrongly treated M’s posts on her private Facebook page (accessible by 40 friends, including a handful of colleagues), which expressed her gender-critical beliefs and shared related links, as inherently transphobic and unacceptable. The tribunal also criticised the employer’s failure to undertake an appropriately balanced and objective assessment of the motivations of the colleague who complained about the posts, in the context of the offence he claimed to have experienced. Its failure to consider whether the complaint could be malicious and to check the complainant’s social media history was taken as indicative of an apparent willingness to accept a complaint from one side “without appropriate objective balance of the potential validity of different views in what is a highly polarised debate”. The tribunal did not consider that any of the posts could reasonably be regarded as offensive or going beyond legitimate manifestations of her protected belief; the fact that some people might be offended is not enough. The tribunal criticised the employer’s failure to take into account the limited audience of the posts, that only one colleague had been offended, that many of the posts were just links to articles, and that the posts were clearly M’s own personal views and not expressed in the context of her professional duties or representative of the employer’s views. The employer’s referral of the matter to the industry regulator and her suspension for over a year while matters were investigated, leading to a final written warning (later withdrawn following her appeal), amounted to unlawful harassment and discrimination.
Even where the manifestation of belief is reasonably objectionable, the employer’s response must be proportionate to achieve a legitimate aim, otherwise its objection to the manifestation will be viewed as inseparable from an objection to the belief itself, and so will be unlawful direct discrimination. In Miller v University of Bristol, the tribunal accepted that a university professor’s belief, that political Zionism is inherently racist, imperialistic and colonial, did not espouse violence or amount to antisemitism and so was a protected belief. Certain manifestations of his belief had been objectionable, in that Miller had publicly targeted student groups notwithstanding the power imbalance, in breach of university policies. However, the tribunal considered that dismissal was disproportionate in light of the importance of freedom of speech, particularly in academia, and the fact that the university had not been consistent in the way it treated previous comments. A lesser sanction could have been used without unacceptably compromising the university’s aims of protecting its reputation and the rights of students, and therefore dismissal was discriminatory and unfair (although compensation was reduced to reflect the employee’s contribution). Employers will need to consider all the relevant factors as enumerated in Higgs (see here) when determining what response is proportionate. The ‘chilling’ effect the tribunal thought the dismissal might have on academic debate generally, to the detriment of society as a whole, was clearly significant in this case – it considered that academic institutions ought to be prepared to weather criticism and reputational damage resulting from their academics’ exercise of the right to speak freely and lawfully on areas connected to their research and expertise. The right to freedom of expression will always need to be put into the balance but might more easily be outweighed by other factors in different industries/roles, depending on the facts.
Finally, in Omooba v Michael Garrett Associations Ltd, the EAT ruled that, where the reason for adverse treatment was concern about a commercial backlash following a social media storm around an expression of beliefs, this reason was to be viewed as separate from the belief itself (which merely formed part of the context). As the reason for the treatment was the commercial concerns and not the beliefs, it was not discriminatory. In this case a theatre company withdrew a role of a lesbian character from an actor following a social media storm over Facebook comments she had made some years earlier (but which she stood by) expressing her religious belief that homosexuality is a sin. (She had failed to read the script for the role until just before the tribunal hearing, and so had been unaware that she would not have wanted to perform the role anyway given her beliefs.) The EAT held that the tribunal had permissibly found on the facts that the employer’s reason was concerns about the adverse publicity and audience reception, and the potential impact on the standing and commercial viability of the production, rather than the beliefs (which were context, rather than the operative reason). The agency was found to have taken her off their books due to concerns that the publicity would threaten the agency’s survival, a reason which similarly was held to be separable from the belief. There was no need for the respondents to show that the external threat to their business was sufficiently severe to justify their action, purely that the external pressure was the operative reason rather than the belief itself. This can be contrasted with Higgs, where on the facts the tribunal ruled that the school’s reason for dismissal was its concern that parents might conclude from an administrative staff member’s Facebook posts that she was homophobic and transphobic. The EAT ruled that this reason had a close nexus to, and therefore was not separable from, her beliefs. Although the posts had been brought to the school’s attention by a parent’s complaint, the position differs from Omooba in that the school had acted before any full-blown parental backlash had developed and threatened the school’s business – although presumably the desire to avoid this was part of its motivation. As a result of the findings on the facts in Omooba, the theatre’s challenge to the proportionality requirements set out in Higgs therefore did not need to be decided, and neither did its contention that it should be allowed to rely on a genuine occupational requirement. It is not yet known whether this decision will be appealed.
Further cases are in the pipeline, including a harassment claim against a government lawyer for making gender critical statements at work and against her department for allowing a civil service network representing staff with gender critical views. The Court of Appeal decision in Higgs, to be heard in October, will be essential reading.
The ‘weaponising’ of grievances and fears of being discriminated against because of views that are “not in alignment with a perceived dominant culture within an organisation” are some of the concerns raised in the Inclusion at Work Panel report published on 20 March 2024. It claims that some D&I interventions in the workplace have little or no impact in increasing diversity or reducing prejudice and can even be counterproductive. It suggests that greater diversity of thought is needed and that employers should consider less visible diversity including socioeconomic and educational background. A framework for successful initiatives is provided (emphasising the need for evidence-informed practice and board and CEO level direction and leadership), along with recommendations that the government develop a toolkit for assessing quality and value for money of D&I initiatives. The report also recommends that the Equality and Human Rights Commission clarify the guidance in this area, in particular the implications of recent tribunal rulings for HR policies and staff networks, to help employers manage situations where conflicts of belief arise in the workplace.
For further information, please contact:
Anna Henderson, Herbert Smith Freehills
anna.henderson@hsf.com
