Clash of Protected Rights in the Workplace

What are the 9 protected characteristics?

The Equality Act 2010 sets out protection for nine characteristics: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, sex and sexual orientation. The types of discrimination relevant to each protected characteristic include direct, indirect, harassment and victimisation. 

No right takes precedence

No protected characteristic trumps any of the other protected characteristics which means in practice, that where there is a clash between employees and feelings are running high, employers face the difficult task of trying to manage and balance competing rights. It is important to be aware that not only is a belief which is covered by the Equality Act safeguarded, but the manifestation of that belief is also protected and any limitation on manifestation needs to be prescribed by law and necessary for the security of the rights and freedoms of others. This makes it very difficult for employers to strike the right balance where conduct and beliefs are intrinsically linked. 

Conflicting Protected Characteristics

Conflict between different protected characteristics arises most frequently as a result of traditional religious views on homosexuality and/or gender identity or between those with gender critical beliefs (which have been held to be a protected philosophical belief (see Forstater below)) and gender identity belief. In addition, employers also need to be aware of the employees’ rights to freedom of expression as well as freedom of religion and belief. 

Sexual Orientation and Religion

There are numerous examples where claims have been brought which stem from religious views about homosexuality. Case law, as set out below, suggests that while employers should not discriminate against employees because they hold certain religious views or beliefs, this does not mean that employees can manifest or express those beliefs regardless of the impact on the rights of others. 

Key cases

Ladele v London Borough of Islington

• Dismissal for refusing to carry out same sex civil partnership ceremony: A Christian registrar was disciplined and found guilty of gross misconduct when she refused to carry out civil partnership duties on the basis that same-sex relationships were against her religious beliefs. The council’s legitimate aim was held to be providing effective services relating to civil partnerships and as a public authority it was committed to promoting equal opportunities towards the rights of the gay community. The Court of Appeal agreed with the Employment Appeal Tribunal (EAT) decision that having established the provision of a non-discriminatory service as a legitimate aim, the council was entitled to require all registrars to perform the full range of services.

McFarlane v Relate

• Dismissal for refusing counselling to same-sex couples: A Christian relationship counsellor was dismissed because he felt he was unable to provide psycho-sexual counselling to same-sex couples as this conflicted with his religious beliefs. The EAT upheld the tribunal’s decision that the employer had a legitimate aim of providing a full range of counselling services to all sections of the community and that dismissal was a proportionate means of achieving that aim. 

Page v Lord Chancellor and Page v NHS Trust

• Dismissal following giving media interviews about same-sex couple adoption: In two separate cases Mr Page was removed as a magistrate and also from his post as a non-executive director of an NHS trust after he spoke to the press about his views on same-sex couple adoption based on his Christian beliefs. The Court of Appeal upheld the decision that the reason for his dismissal was not because of his religious beliefs but for speaking to the press, against judicial guidance, and thereby flouting his judicial oath of impartiality. Similarly, his dismissal from the NHS trust position was not because of his religious beliefs but because he continued to speak to the media despite several requests by the Trust not do so.

Gender Critical Beliefs VS Gender Identity Expression

The last couple of years has seen an increase in tribunal cases brought by those who have gender critical views either because of their religion or as a philosophical belief. Tribunals have looked at whether their beliefs satisfy the tests set out in Nicholson v Grainger and, in particular, the fifth criterion i.e. are they worthy of respect in a democratic society. The key decisions are:

Forstater v CGD Europe

• Gender critical beliefs are protected: The Employment Appeal Tribunal (EAT) held that gender critical beliefs, including that biological sex is immutable and should not be conflated with gender identity, and that trans women are men, was a philosophical belief qualifying for protection. It held these beliefs are protected as being worthy of respect in a democratic society and that it is only beliefs such as totalitarianism or Nazism that would not satisfy this criterion. This sets the bar quite high.
  
  However, the EAT made it very clear it was not commenting on the merits of the transgender debate and that its decision did not permit those with gender critical beliefs to “mis-gender” with impunity. Trans persons still have protection against unlawful discrimination and harassment and employers are still under a duty to protect them from this in the workplace. Equally, employers are also under a duty to ensure that employees with gender critical beliefs are not subjected to unlawful harassment or discrimination either.
  
  The tribunal subsequently held that the non-renewal of Ms Forstater’s contract was discriminatory. She had posted a series of tweets which demonstrated her beliefs. The Tribunal considered whether these were a manifestation of her belief to which objection could reasonably be taken or an inappropriate manner of manifesting her belief. It found that they were not objectively unreasonable and that therefore the non-renewal of her contract was discriminatory because it was due to her gender critical beliefs. 

Bailey v Stonewall and ors

• Formal complaints about gender critical tweet: Allison Bailey, a barrister at Garden Court Chambers set up an organisation for lesbian, gay and bisexual but not trans people to provide an alternative to Stonewall. She tweeted that “gender extremism is about to meet its match”. As a result, her Chambers replied that it was investigating concerns in line with its Complaints and Bar Standards policies.
  
  She brought claims against her Chambers and against Stonewall. The tribunal found that she had been discriminated against by her Chambers because of her beliefs when they tweeted that she should be investigated and when they found that two of her tweets were likely to breach the barristers' core duties. The claim against Stonewall that it had instructed or induced discrimination by her Chambers was dismissed by the tribunal. She has appealed this aspect. 

Mackereth v the Department for Work and Pensions

• Mis-gendering, religion and philosophical belief: A Christian doctor’s conscientious objection to transgenderism was held not capable of protection as a religious or philosophical belief because his views were incompatible with human dignity which conflicted with the fundamental rights of others.
  
  Dr Mackereth’s role at the DWP was as a disabilities assessor of benefits claimants. As part of his induction process, he was told he should use the preferred pronouns of transgender service users. He refused. The EAT dismissed his appeal on the basis that whilst he was disadvantaged by having to use preferred pronouns because of his beliefs, this was a necessary and proportionate way of the DWP achieving its legitimate aims, which were to ensure transgender service users are treated with respect and to provide a service that promotes equal opportunities. 

Higgs v Farmor’s School

• Dismissal for inflammatory language on social media: A tribunal held that Ms Higgs’ gender critical belief was protected. However, it also held that she had not been directly discriminated against or harassed as her dismissal was because of the inflammatory language used in her Facebook posts which could have led readers to believe she held homophobic and transphobic beliefs. The school had considered that her posts had the potential to negatively impact various groups of people, including pupils, parents, staff, and the wider community.
  
  On appeal, the EAT found that the tribunal had not applied the law correctly and remitted the case to determine whether her dismissal was because of the manifestation of her protected beliefs i.e. was there a direct link between the posts and her beliefs, or due to a justified objection to the manner of that manifestation in which case there was a clear legal basis for her rights to freedom of belief and expression to be limited to the extent necessary for the legitimate protection of the rights of others. The tribunal will therefore need to be satisfied that dismissal was proportionate. This is very much a balancing act based on the specific facts of the case and there is “no one size fits” all approach. 

Exceptions where discrimination may be lawful

There are some circumstances where an employer may have a defence under the Equality Act to an act of direct or indirect discrimination that is otherwise unlawful. These include, having regard to the nature or context of the work, that having a particular protected characteristic, or not being a transsexual person, married or a civil partner, is an occupational requirement. There are also specific exceptions based on employment for the purposes of organised religion where the employer may apply an occupational requirement including that the employee is not a transsexual or related to sexual orientation or where the employer has a religious ethos and being of a particular religion or belief is an occupational requirement.    

There is no defence to any claim of harassment or victimisation.

Diversity, Equity and Inclusion (DEI) and Anti-harassment Policies

The Equality and Human Rights Commission (EHRC) recommends in its Employment Statutory Code of Practice that employers have a policy on dignity and respect setting out workers’ rights and responsibilities to each other to help avoid disputes and conflicts between employees with different protected characteristics. Employers should ensure that employees understand that they are expected to behave in a professional way and to treat everyone with dignity and respect. These policies should help to provide a positive message to employees and should discourage discriminatory attitudes and behaviour.

Employers should ensure that DEI and anti-harassment policies expressly cover gender identity and include best practice examples of harassment such as name-calling, derogatory remarks about trans people, misgendering or jokes and banter about someone’s identity. Similarly, those with gender critical views should also be protected against harassment as a result of their views.

Enforcement of policies

These policies should be promoted and publicised as widely as possible and senior management should ensure that they are implemented proactively through staff training, raising awareness and by taking appropriate action against perpetrators of discrimination and harassment. These should also be resourced, monitored and reviewed to ensure that there is regular reporting on their effectiveness.   

Where there is conflict, managers should be trained in handling constructive conversations to deal with issues that may arise and be supported by HR. 

Our expertise

We advise on all aspects of employment law including on issues relating to a clash of rights in the workplace and advice on how to prevent issues arising and how to handle them if they do.

We use our exceptional breadth and depth of experience to give clients personalised advise to help manage risk and resolve issues as well as bespoke training tailored to your needs together with the use of our independent HR consultants to help put in place systems to monitor and review to minimise the risk of claims. Please contact Michael Powner or your usual Charles Russell Speechlys contact if you would like to get in touch.