It would be fair to say that these are unique times. While Brexit, in one form or another, might have been predictable, coronavirus and the effect it has had on our lives would have been unfathomable only a year ago, and you would have got long odds on protesters storming the White House. Uncertainty can lead people to question the status quo and form opinions which others find disagreeable. But to what extent are beliefs protected by employment law?
Religion and belief
Religion or belief is one of nine protected characteristics in the Equality Act 2010. Religion includes a lack of religion and belief a lack of belief, although not every asserted religion or belief will qualify for protection. Broadly mirroring Article 9 of the European Convention on Human Rights, which guarantees freedom of thought, conscience and religion, to be a protected characteristic a religion must have a clear structure and belief system while a belief must:
- be a religious or philosophical belief;
- be genuinely held;
- be a belief and not an opinion or viewpoint based on the present state of information available;
- be a belief as to a weighty and substantial aspect of human life and behaviour;
- attain a certain level of cogency, seriousness, cohesion and importance; and
- be worthy of respect in a democratic society, compatible with human dignity and not conflict with the fundamental rights of others.
Over the years, the courts have decided that Scottish independence, ethical veganism and anti-hunting are all beliefs which qualify for protection. Transgenderism has proved more difficult as conflicting decisions, which are in the process of being appealed, have held on one hand that an absolutist view that ‘sex’ should not be conflated with ‘gender’ or ‘gender identity’ and that being female is an immutable biological fact, rather than a feeling or an identity, is not a protected belief while, on the other hand, a Christian employee’s beliefs that gender cannot be fluid and an individual cannot change their biological sex is capable of protection.
Political beliefs
Whether political beliefs are protected has also presented a challenge – presently, there is a distinction between being a member of a political party (which does not in itself amount to a protected characteristic) and believing in the underlying philosophy or doctrine (which may qualify for protection), although this feels uneasy and the likelihood is that strongly held political views are capable of constituting a philosophical belief.
Philosophical beliefs
Establishing a philosophical belief is more onerous than establishing a religious belief. Rather than showing adherence to the religion, the claimant must adduce evidence that their belief is genuine and what they are insisting on, or objecting to, is being done on the grounds of that belief. Manifestation of the belief is key. A belief based on a singular issue may qualify for protection, however, it is less likely to do so if it has a wider aspect yet manifested inconsistently. This does not necessarily need to take place in public though as some qualifying beliefs will be privately held.
It is certainly not straight-forward then to assert a philosophical belief and assume that anything you do because of it will be protected by the Equality Act 2010. The fifth bullet point above (the fourth test in the case which gave rise to the criteria, Grainger v Nicholson [2010] IRLR 4) is where many putative beliefs fail on the basis that being more than merely trivial does not necessarily equate to cogent or coherent. The last bullet point prohibits beliefs which offend basic standards of dignity or integrity. However, just because a belief has the potential to upset others does not mean that it will not qualify for protection.
A democratic society accepts that people will have a range of views on any particular issue. Indeed, tolerance of others underpins our basic freedoms. The whole point of recognising human rights is to acknowledge that all individuals are entitled to a certain, minimum level of protection. There is no fundamental right not to be offended.
Where does this leave contentious philosophical beliefs then?
Where does this leave contentious philosophical beliefs then?Would, for instance, an anti-vaccination belief be covered by the Equality Act 2010? This would depend on the facts, however, if it manifested itself in a refusal to be vaccinated and the individual could show that theirs was a genuine belief held over an extended period of time rather than a reaction to recent media, it would turn on whether the belief is deserving of respect or conflicts with the rights of others – my thoughts are that it probably would qualify for protection provided the manifestation did not put others at risk.
Employers should keep in mind the potential to treat workers differently because of their religion or belief. This might sound obvious, however, it is easier than you think to subconsciously exclude someone who does not share a widely-held view, which risks impugning their right not to hold a belief. As employers can be found vicariously liable for the acts or omissions of their employees, care needs to be taken throughout the business to avoid treatment which could result in direct discrimination or harassment claims.
