Exploring Belief Discrimination and Freedom of Speech in the Workplace

The ‘cancel culture’ in recent years has been rife. Authors, journalists, university lecturers, even barristers, have all been unceremoniously bundled out of their jobs and cancelled for expressing unpopular or controversial beliefs.

In circumstances in which such beliefs are expressed by individuals connected to a workplace, employers may seek to distance themselves from such matters, cautious of the potential adverse repercussions and reputational damage, but recent case law illustrates the importance of remembering the principles of free speech and protection from belief discrimination.

Religion and belief are designated as “protected characteristics” under the Equality Act 2010, making it unlawful to discriminate against someone based on their religion or belief. This protection extends to a wide variety of religious beliefs, including those that pertain to a religion’s core principles as well as beliefs held within a religious context that may not be universally held.

Additionally, in recent years, the law has been extended to safeguard philosophical beliefs such as those related to environmentalism, gender critical beliefs, and views on racial equality. To qualify for protection, philosophical beliefs must be sincerely held and relate to a significant aspect of human life and conduct. It is also essential that these philosophical beliefs are compatible with a democratic society and do not upon the fundamental rights of others.

A key case in this area was that of Forstater v CGD Europe in 2020. Ms. Forstater’s employer made the decision not to renew her consultancy contract following complaints from some of her colleagues that her views made them uncomfortable and were trans-phobic.

Ms. Forstater held the belief that a person’s sex is a biological reality distinct from gender identity, and that gender is an inherent and unchangeable aspect of biology, not a matter of feeling or identity. She also contended that a transwoman is not genuinely a woman. Ms. Forstater filed a discrimination claim against her employer, asserting that her belief was protected under the Equality Act. Her argument centred partly on the importance of safeguarding safe spaces and single-sex services for women.

At a preliminary hearing, an employment tribunal ruled that Ms. Forstater’s beliefs did not warrant protection as they were not deemed acceptable in a democratic society. However, this decision was overturned by the Employment Appeal Tribunal, which concluded that only beliefs akin to Nazism, totalitarianism, or those inciting severe forms of violence and hatred would fail to qualify for legal protection. Merely being offensive or controversial to some or having the potential to contribute to the harassment of trans individuals in certain cases, was not sufficient to disqualify a belief. Ms. Forstater’s gender critical beliefs, which were widely held and did not seek to infringe upon the rights of trans individuals, clearly did not fall into this prohibited category.

When the case returned to the tribunal for a substantive ruling on her claim, it was determined that Ms. Forstater had experienced direct discrimination due to her expression of these beliefs.

A most recent example, Corby v ACAS, is another reminder to employers of the rights to free speech and freedom from belief discrimination.

Mr Corby, a senior mediator for ACAS, posted on a private workplace communications platform criticising the Black Lives Matter movement, arguing that critical race theory is divisive because it portrays white people as racist. Critical race theory is a set of ideas that holds that racism is ingrained in society, not solely stemming from individual prejudices but deeply rooted within legal structures and policies. Mr. Corby advocated an alternative approach to combatting racism, citing the teachings of Martin Luther King, who emphasised judging individuals based on their character rather than their racial identity.

Several of Mr. Corby’s colleagues raised concerns with management, alleging that his remarks exhibited a “deep rooted hatred towards black and minority ethnic people who challenge racism” and “promoted racist ideas”.

Whilst the complaints were dismissed by ACAS, Mr. Corby was advised to remove his posts, a request he refused. Consequently, he filed a claim in the Employment Tribunal, asserting that he had been the victim of unlawful discrimination and that his opinions were safeguarded under the Equality Act 2010.

At a hearing on the preliminary issue of whether Mr Corby’s belief was a protected characteristic, the tribunal ruled in Mr Corby’s favour. It was determined that Mr Corby had given his beliefs “careful consideration and much thought”, and that Mr Corby’s beliefs “relate, in essence, to the best way to eliminating racism in society, and are clearly worthy of respect. They cannot be described as incompatible with human dignity or conflicting with the fundamental rights of others, even if they are not universally shared and were objected to by some of the claimant’s colleagues”.

By way of a footnote, it’s somewhat ironic that ACAS is the publicly funded government organisation charged with resolving disputes in the workplace!

These recent cases demonstrate the increasing scope of expression of beliefs which can be protected under the Equality Act 2010. This is something that employers should keep in mind when faced with dealing with difficulty resulting from an employee expressing an unpopular or controversial belief.

Please contact the Elborne Mitchell LLP Employment team if you require any information or advice on any workplace matter.

Kate Payne, Head of the Employment Group / November 2023

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