Navigating the future: protected beliefs in the workplace

Our employment law & business immigration experts look into the challenges employers can face surrounding protected beliefs.

In the past few years, we have witnessed a significant rise in employment tribunal cases centring around a conflict between the protection of employees’ rights to express their beliefs, and the rights and freedoms of others. Dealing with such conflicts in the workplace can be extremely difficult for employers, especially when the case revolves around a public post on social media platforms like Facebook or X (formerly Twitter).

In this article, we outline the key legal principles covering the protection of the expression of one’s beliefs and consider the challenges faced by employers when tackling clashes of conflicting rights in the workplace.

What is a protected belief?

‘Religion and belief’ are among the nine protected characteristics defined by the Equality Act 2010 (EqA). Employees with protected characteristics are protected from discrimination due to their protected characteristic by employers and their employees. ‘Religion and belief’ encompasses religious and philosophical beliefs, as well as the absence of belief.

Determining what qualifies as a ‘protected’ philosophical belief is left for the courts and tribunals to decide. The leading case in this area established criteria known as the ‘Grainger test’ (after the name of the claimant in that case), so that for a belief to be protected, it must:

• be genuinely held
• be a belief, not an opinion or viewpoint based on the present state of information available
• relate to a weighty and substantial aspect of human life and behaviour
• attain a certain level of cogency, seriousness, cohesion and importance
• be worthy of respect in a democratic society, not incompatible with human dignity and not in conflict with the fundamental rights of others.

In applying the Grainger test over the years, the tribunals have established that protected beliefs can (in theory, and provided they otherwise meet the criteria above) span a broad spectrum of issues, including beliefs in climate change, ethical veganism, and gender-critical perspectives.

However, there are certainly limits to what can meet the Grainger test. For example, in the case of McClung v Doosan Babcock Ltd & Others, support for Glasgow Rangers Football Club was held not to amount to a philosophical belief!

Does the way in which the belief is expressed matter?

While employees have the right not to be discriminated against or harassed due to their protected beliefs, it is important that those beliefs are expressed in a manner that is not objectionable and do not infringe the protected characteristics of others.

In the case of Higgs v Farmor’s School, the Employment Appeal Tribunal considered what would amount to an ‘objectionable’ expression of a protected belief and set out guidance on how to assess this. However, they also confirmed that it will always be very case-specific.

When evaluating the way in which an employee’s belief is expressed, you should take into account the content and tone in which it was expressed. You should consider the likely audience and the potential reputational risk involved. If you seek to take action as a result of a belief being expressed, you should always consider what the legitimate aim of your action is – such as safeguarding the rights of other individuals. In doing so, you should evaluate whether your aim is significant enough to warrant restricting the expression of one belief in favour of another, and explore whether there are less intrusive methods of achieving this.

Case law also demonstrates that it is the hasty and disproportionate response that gets employers into trouble and may result in high compensation. For example, Maya Forstater was recently awarded over £100,000 when she was found to have been directly discriminated against after expressing gender critical beliefs on social media. This occurred when her employer posted a ‘response’ tweet announcing that the matter was under investigation.

What should you do?

The law provides protection for a wide range of beliefs, including those that may be perceived as controversial, unpopular or even offensive. This places employers in a delicate position when trying to balance one individual’s freedom to express their beliefs with the rights of others. This is especially when the line between a sincerely held protected belief and hate speech is thin, and the consequences of misjudgement can be significant.

While the legal position is not straightforward, case law now offers guidance on how to navigate such conflicting situations in the workplace, although it will always be very fact specific. You can take proactive steps by implementing sensible policies outlining the behaviour you expect from your staff. However, you must be cautious not to unreasonably restrict your staff in their activities outside work, particularly when there is no clear link with, or impact on, your organisation.

Where a balancing exercise is needed, you should follow the guidance provided by case law before taking any hasty action. Additionally, seeking expert legal advice is advisable.

If you need any help or have questions relating to protected beliefs, please get in touch with our team.

Our Legal 500-rated employment law & business immigration team are experts in guiding businesses of all sizes and backgrounds through a range of issues that may arise, including those related to protected beliefs.