Expressing an opinion on global affairs – What should an employer do if the expression of a protected belief is offensive?

Recent global events have been tough reading. As the temperature of the conflict in the Middle East intensifies, this heat appears to have radiated around the world igniting strong responses on all sides. Many employees may be roused to verbalise their affiliation or ask for their employer’s financial support or endorsement in other activities, such as fund-raising, creating a difficult line for managers and HR teams to navigate between parties holding different, but deeply held beliefs.

What action can an employer take in the face of robustly expressed beliefs to avoid offence and protect the working environment for all? How does an employer balance respecting an employee’s right to hold a religion or philosophical belief while at the same time ensuring that other employees are not subjected to harassment?

The starting point is to put matters in the right legal context.

Discrimination based on religion or protected beliefs

An employee has the right to not be subjected to a direct discrimination or to be placed at a particular disadvantage because of their religion or philosophical belief (or for not holding such beliefs) when compared to an employee who does not share the same beliefs. Discrimination by perception may arise if an employee is thought to hold a belief even if this is not the case.

The case of Grainger Plc v Nicholson held that a philosophical belief must:

• be genuinely held;
• not just an opinion or viewpoint based on limited information;
• amount to a weighty and substantial aspect of human behaviour;
• attain a certain level of cogency, seriousness, cohesion and importance; and
• be worthy of respect in a democratic society.

Examples of philosophical beliefs have been held to include veganism, concerns over man-made climate change and gender critical views. In Maistry v BBC the claimant’s belief that the BBC served a higher purpose of public service broadcasting in promoting cultural interchange and social cohesion, was held to be a protected philosophical belief.

Article 9.1 of the Human Rights Act 1998 protects freedom of thought, conscience and religion and article 9.2 grants the individuals the freedom to manifest those beliefs unless they are subject to limitations that are prescribed by law and are necessary in a democratic society, the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

All religious or philosophical beliefs are equal; one cannot override another.

Harassment

Harassment occurs where a person engages in unwanted conduct related to a protected characteristic and the conduct has the purpose or effect of violating an employee’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment. “Religion or belief” is a protected characteristic under section 4 of the Equality Act 2010 and therefore, it is unlawful for an employee to be subjected to conduct that amounts to harassment because of their religion or philosophical belief (or lack thereof). Importantly, there is no requirement for the harassment to be intentional.

The inclusion of the words “related to a religion or belief” are significant as it is not just the person that holds the religion or belief that might be the subject of harassment, it could be that the person holding the belief is the perpetrator. The ACAS Guidance gives the example of an individual who is outspoken about their religious beliefs and tells other employees that, “they are not fit to walk on God’s Earth”; this would amount to harassment if another employee finds the comments offensive and hostile.

What about a clash of rights?

Employers face a difficult task in trying to balance competing beliefs, especially when the subject matter is emotive and views are strongly held. Consider the following examples:

• If an employee attends a protest in their free time and a photo of them attending the protest is posted online by a third party, this might create a hostile working environment for employees who hold different view; would this amount to harassment?
• Can employees post their opinion on current affairs on their personal social media?
• If two employees discuss current world affairs and a third employee overhears the conversation and is offended by the views expressed, how should an employer respond?
• If an employee wears an item of clothing or other item promoting a particular belief, could this be deemed offensive? Even if the message is not derogatory?

In considering these questions the following should be considered:

1. A distinction needs to be drawn between holding a belief, and manifesting that belief and employers should ask themselves if a sufficient distinction can be drawn between holding the belief and manifesting it (is there a ‘nexus’ between the belief and the manifestation) such that the ‘banning’ the manifestation may amount to indirect discrimination (which might be objectively justified if it is a proportionate means of achieving that legitimate aim).Take for example, a Christian worker wearing a cross on a necklace. Holding that religious belief is protected, but the cross is a manifestation of their belief and therefore ‘banning’ the wearing of the cross through the application of a dress code for example, could be indirectly discriminatory.In the case of Eweida v British Airways Plc it was ultimately held that Ms Eweida wearing a cross was “sufficiently close” to the Christian faith to be a manifestation of a belief, and therefore it was necessary to look at the question of whether or not applying a PCP to that manifestation (no crosses to be worn visibly) was a proportionate means of achieving a legitimate aim. The ‘legitimate aim’ of BA in that case (through the implementation of a “no jewellery” part of its dress code) was to improve their brand image by creating a more ‘corporate look’; it was held that banning Ms Eweida wearing a cross was not a proportionate means of achieving that aim because there was no evidence that preventing Ms Eweida from wearing the cross would achieve the ‘legitimate aim’ relied upon by BA.The Eweida case can be contrasted with the case of Page v Lord Chancellor and another where a Christian magistrate was dismissed for expressing his negative views on same sex couples to the press. The Court of Appeal held that the magistrate was dismissed for speaking to the press against judicial guidance and flouting his judicial oath of impartially, not because of his views on same sex couples. Talking to the press did not have a sufficient ‘nexus’ to his religious beliefs.
2. As set out above, an employer can never legitimately discriminate or harass an employee for holding a belief, but they may be able to limit or restrict the manifestation of that belief if it is a ‘proportionate’ way of protecting a legitimate aim of the employer (for example, protecting other staff from harassment or other types of discrimination, even if not intended). When considering if a limitation or restriction on the manifestation of a belief therefore, employers should consider:
   1. is the objective (legitimate aim) the employer seeks to achieve, sufficiently important to justify the limitation of the right in question?
   2. is the limitation connected to that objective?
   3. is there a less intrusive limitation that may be imposed without undermining the achievement of the objective in question? and
   4. on balance, does the importance of the objective outweigh the severity of the limitation?
3. If an employer can show that they have considered the above questions and that the limitation or restriction achieves a legitimate
   aim and is ‘proportionate’, they will be permitted to limit or restrict the manifestation of an employee’s beliefs.
4. In their own time employees may engage in activities to express their beliefs such as attending a protest or expressing their views online; indeed it has already been reported in the press that employees have been sacked for expressing their views on recent events. Citibank announced that they had dismissed an employee for posting antisemitic remarks on Instagram, and US Law firm Davis Polk revealed that the firm had withdrawn offers of employment to Harvard students who had signed a now-deleted statement criticising Israel.
   In Higgs v. Farmor’s School a teacher posted on her personal Facebook account, her view that same-sex relationships and gender-fluidity should not be taught in primary schools as this amounted to, “brainwashing our children.” A parent of a pupil complained to the school. Higgs was dismissed for gross misconduct as the school felt that the expression and language used was extreme and therefore it was legitimate for the school to impose restrictions on Higgs’ right to express her views. The Employment Appeal Tribunal disagreed and held that just because a belief is not popular or may offend does not mean to say that it is automatically legitimate to restrict it’s expression in a democratic society. An employee’s freedom to hold religious views had to be weighed against the legitimate interests of their employer and in this instance, it was found to be disproportionate to dismiss Higgs. It was emphasised that “issues arising from the exercise of rights to freedom of religion and belief, and to freedom of expression, are invariably fact-specific” and that “there is no “one size fits all” approach”.Social media now allows individuals to express their beliefs to a much wider audience than ever before, and the mysterious algorithms in operation can create an echo chamber encouraging individuals to interact and post more. Employers should have in place a carefully drafted Social Media policy and should bring this policy to the attention of employees so that they understand how they should behave online.

Due to the nuanced and fact specific nature of disputes arising, legal advice should be taken at the earliest opportunity if an employer is uncertain how to proceed. Edwin Coe LLP has experience resolving complex and delicate matters and can offer practical advice to avoid escalation. There is no “one size fits all” approach and decision makers should take time to reflect on any steps before taking action.

Practical tips for employers

• Employers should have robust conduct and harassment policies and a formal Code of Conduct with training in relation to those policies, particularly harassment (which for example, explains the difference between holding a belief and manifesting that belief inappropriately at work), can help set the right context in which to address matters that may arise between staff and give managers the tools with which to address matters fairly and consistently.
• Issues arising can require employers to undertake a balancing exercise. Time needs to be taken to gather information before taking action.
• Managers should be careful not to let their own views influence a situation or dismiss a concern because they do (or do not) deem the behaviour offensive themselves.
• Employers should not wait until there is a formal complaint to take action and should be alert to “open secrets” in respect of all forms of harassment.
• All grievances should be investigated and all investigations comprehensively documented.

Should conflict arise, legal advice should be taken at the earliest opportunity to avoid escalation.

Should you require advice in relation steps your company can take to mitigate employment law risks, or any of the matters raised in this blog, please contact Linky Trott or any other member of the Employment team.

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