The Court of Appeal gave judgment last week in another of what has been a series of cases dealing with conflicts between beliefs expressed by employees, and the categories of protected characteristics under the Equality Act 2010.
In this case, an employee of a school, Mrs Higgs, had expressed concerns via her private social media about teaching in schools relating to same-sex marriage and gender identity. Another parent saw the comments, which had been posted in a manner which did not identify the school and used the employee’s maiden name (which was different from the name she used at school), and had complained to the school about the views expressed, which were described as offensive. Following an investigation and disciplinary process, the employee was dismissed and brought, amongst other claims, a claim that she had been subjected to detriment because of her protected beliefs.
The case takes a robust approach, supporting the freedom of employees to express and manifest protected beliefs, though it recognises that some limitation is likely to be appropriate in the manner of expression of belief and related conduct.
Where does all of this leave employers in practice? They will be keen to ensure that they are complying with their Equality Act obligations in providing a safe workplace for all employees. However, they will surely also wish to avoid being drawn into personal disputes between employees arising out of conflicting views on contentious topics, or getting caught up in social media storms as part of wider campaigns on contentious topics, whether covered by the Equality Act or not.
Fundamentally, it is useful to recognise that there is a level of conflict built into the Equality Act. Protected characteristics include gender re-assignment and sexual orientation, but protection of religion and belief includes protection of a belief that sex is immutable and cannot be changed. Most of the major world religions do not recognise same sex marriage as the equivalent of marriage between a man and a woman. The Courts have also made clear that it is an error on the part of an employer to engage in stereotypes, which includes making an assumption about an individual’s personal beliefs by reference to their race or religion. Not all individuals who adhere to a religion believe in every rule or dogma of that religion, and religious beliefs are not always aligned with ethnic or national origin. Non-belief is protected in the same way as belief. Employers can therefore find themselves managing staff who hold deeply opposing views, each of which gives rise to a right to be protected from detriment because of their belief or other protected characteristics.
Employers will clearly not want to find themselves refereeing disputes between employees or being pressured to take sides where conflict arises. There is a clear risk to employers of being on the receiving end of Employment Tribunal claims if they are seen to punish an individual because of a protected characteristic. Such cases will often be very popular in the media and can therefore do reputational harm as well as cost a lot of time and money.
The Court of Appeal judgment also expressly deals with the impact of rights to free speech under the European Convention on Human Rights in addition to the Equality Act rights. Under the Human Rights Act 1998, UK courts are obliged to interpret legislation in line with the European Convention as far as is reasonably possible, so that the provisions of the convention are effectively indirectly introduced into UK statutory employment provisions. Such rights go beyond those relating to protected characteristics and will therefore include rights to speak about political issues of the day.
The right to free speech is not absolute. It is, however, wide-ranging, and in the Higgs v Farmor case, the Court of Appeal expressly cited the principle that the freedom to speak only inoffensively is a freedom not worth having. There is no right to be protected from hearing things with which you disagree and employees could usefully be reminded of this.
Some limits on freedom of speech are permitted, to the extent that such speech would infringe on the rights and liberties of others, but no one has a right not to hear an opposing or, to them, disagreeable view.
It will not be appropriate, therefore, for employers simply to seek to forbid employees from expressing views in the workplace or sharing the fact of any protected characteristic they may hold. In the Higgs v Farmor’s case, one of Mrs Higgs’ beliefs was that as a Christian she was required to bear witness to her beliefs, which would involve speaking about them. This is itself a protected belief, although the protection afforded to manifestation of belief does not extend to or permit continued proselytising or hectoring of those with different views. Clear guidance that employees should not persist in conversations with others who have made it known that they disagree, or are simply not interested, should be acceptable.
It is therefore useful for employers to now give thought to providing clear guidance to employees, whether in an overarching stand-alone policy detailing an expectation of respectful disagreement in relation to engagement on contentious topics, both in the workplace and beyond, or by adding to individual existing policies. The guidance can remind employees that they should not conduct themselves in a manner likely to amount to bullying or harassment, or to create a degrading or hostile environment for any employee. That does not preclude them from being open about their protected characteristics or beliefs, but they must not do so in a hostile or intimidating fashion. Employers can also helpfully remind staff that the workplace is not the right forum for discussion of contentious topics where feelings run high and disagreement is evident.
Such guidance can remind staff that whilst they may enjoy the protections under the Equality Act, in relation to protection of belief non-believers are protected in the same way as believers, and so are free to make known their non- belief. No employee is entitled to impose their views on a colleague or to subject a colleague to detriment on the basis of what they do or do not believe, and an Employer is entitled to say that disputes on such issues are ultimately not for the workplace.
Reminding employees that where differences arise, they should “agree to disagree”, or seek to disagree agreeably and respectfully, will be useful guidance both generally and as part of anti-harassment and bullying and equality polices published by employers. Such an approach can manage expectations and also provide employers with a basis on which to intervene, if necessary, where conflict has arisen, without being seen to take sides.
Employers will already typically include provisions in social media policies, reminding employees not to identify their employer in personal posts and to avoid any suggestion that personal views expressed in any way represent the views of the employer. A reminder that employees are entitled to have social media accounts and to post on subjects of interest, and that the employer does not take responsibility for such material, will also be helpful. This might usefully also remind employees that employers will not generally seek to intervene in disputes relating to such material.
We can hope that the pragmatic approach taken by the Court of Appeal might serve, in time, to discourage any practice of seeking to pressure employers to disassociate themselves from employees who have expressed views which are not palatable to all, provided that those views are not expressed in a manner which goes beyond the limits of freedom of speech.
