Legislation to outlaw religion and belief discrimination first came to the UK at the end of 2003.
From the start, it has proved challenging for employers, not least because of the uncertainty as to what would be a religion or a belief capable of protection, and the need to manage the inherent conflicts that can arise between one type of discrimination, such as discrimination relating to sexual orientation, and another, such as religion or belief discrimination.
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A series of cases have helped us understand the legislation. One of the earliest was Grainger PLC v Nicholson in 2010. This case concerned whether a belief in climate change was capable of protection.
The employment appeal tribunal thought that it was, and it set out principles by which a tribunal may determine if the belief in question is capable of protection under the legislation. For example, the belief cannot just be an “opinion”, it must be on a weighty and substantial aspect of life, and it must be worthy of respect in democratic society.
In the last few months, the debate has moved on. We have recently seen many cases dealing with allegations of discrimination involving gender and transitioning, and same-sex relationships.
A criminology professor with gender-critical views won a claim against her employer for discrimination, as did a deputy leader of the Green Party when he was dropped as a spokesperson because of his gender-critical views. However, an actor believing homosexuality to be a sin lost her claim for discrimination when she was denied an opportunity to perform a lesbian role.
Given the real difficulty in predicting the outcome of these cases, employers may look for another leading case that can provide guidance.
Help has been on hand, with a case that has been working its way through the courts.
Read more: Gender-critical teacher loses unfair dismissal claim in pronouns tribunal
The claim in Kristie Higgs v Farmor’s School and the Archbishops’ Council of the Church of England had been brought by a pastoral administrator working with potentially vulnerable children. On her Facebook account she warned that children were being “brainwashed” into thinking that same-sex marriage was the same as traditional marriage, and that gender was a matter of choice rather than biology.
Higgs was investigated and summarily dismissed for gross misconduct. The employment appeal tribunal held that the school should have weighed up the right Higgs had to manifest her views, however controversial they may be to some people, with the need to protect the views of others.
The judge went on to lay down guidelines to help employers with the difficult task of trying to determine whether an employer’s wish to protect others is sufficiently important to justify limiting the right of the employee to express their belief.
In making that assessment, the employer should consider factors such as the tone of the view that was expressed, the likely audience, the extent to which the expressed view intrudes upon the rights of others, and whether a less intrusive limitation might be introduced as an alternative.
Employers should not tackle these tricky issues without considering the guidance issued in the Higgs case. The only fly in the ointment is that this case is due to come back to the Court of Appeal later this year.
Let’s hope that its conclusion will shed further light on what, in practice, employers need to do to stay on the right side of the law in these difficult cases.
Richard Fox is employment partner at Keystone Law
This article was published in the May/June 2024 edition of HR magazine.
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