Employers warned of surge in cases involving staff beliefs
Most employers found 2022 a truly challenging year, as Australia emerged from a global pandemic, dealt with international political instability then needed to manage soaring living costs and inflation, along with facilitating hybrid models of work to encourage staff back to the workplace.
Of potential interest to Australian employers were UK employment tribunals who were busy handing down decisions which will over time may well impact on the operations of most employers. This TELS Employer Update focuses on a number of these major UK tribunal decision dealing with the protection of employee beliefs – an area of the law which appears to be rapidly developing.
Overview of employment laws protecting staff beliefs
The Equality Act 2020 is the key piece of UK employment legislation governing discrimination on the grounds of religion or belief, making these protected characteristics which can be breached directly, or indirectly – such as by association or perception. Additionally, aspects of the European Convention on Human Rights (ECHR) continue to operate, pending post-Brexit decisions by the UK government.
Unfortunately, in Australia the situation is more complex. Accordingly, employers needing to consider protections afforded to employees through the Fair Work Act 2009, as well as other Federal anti-discrimination such as those dealing with Sex 1984, Disability 1992, Racial 1975 and Age 2004. Additionally, respective state legislation such as the NSW Anti-Discrimination Act 1977.
Key UK cases from 2022 dealing with employee beliefs Scottish Federation of Housing Associations v Jones – 26 July 2022 An employee’s request for permission to stand as a candidate for the Scottish Labour Party was refused and despite her withdrawing her nomination, she was dismissed with a month. Employment Appeal Tribunal Decision: While participation in the democratic process is a protected belief under the Equality Act, in this case a provision in the employee’s terms of employment requiring staff to remain apolitical meant her dismissal was for failing to keep politically neutral, and not because of any specific political belief she may have held. Bailey v Stonewall Equality Ltd & Garden Court Chambers Ltd – 27 July 2022 A barrister was a prominent campaigner for lesbian rights and initiated a campaign of strongly critical comments and tweets about the transgender approach of LGBTQ+ support charity Stonewall, including discouraging her Chamber’s colleagues from dealing with them. Stonewall complained to Chambers, who publicly confirmed they were investigating the barrister, before upholding parts of the complaints. The barrister claimed sex-based discrimination and victimisation by her Chambers, also alleging Stonewall had been involved in inducing such illegal conduct. Employment Tribunal Decision: The Chambers had discriminated against the barrister on the basis of her protected beliefs about gender and victimised her when they issued a statement advising she was under investigation for potential breaches of her professional obligations. Mackereth v Department for Work and Pensions – 29 June 2022 A doctor was employed to assess applicants for disability benefits, including anumber who were contemplating gender reassignment. Because of his Christian beliefs that people sinned if they sought to change their gender, he declined to support clients in their transition process, including refusing to use their chosen pronouns and titles, contrary to clear DWP policy. This refusal led to his suspension, then dismissal. Employment Appeal Tribunal Decision: While the DWP preferred gender policy may have resulted in indirect discrimination against the doctor and his protected beliefs of religion under the Equality Act, in this case the employer had a justification defence arising from the Department’s legitimate operational obligation to assist, treat and support vulnerable clients such as those utilising transgender services. As such, the doctor was not discriminated against by being required to use the client’s preferred titles and pronouns. Walters v Active Learning Trust – 4 May 2022 When an evangelical Christian minister who undertook work as a school caretaker sent out a tweet advising Christians they should not attend a LGBTQ Pride event as these were especially harmful to children, his employer received complaints from parents and others in the community. Although the caretaker shortly after resigned, the school continued with disciplinary investigative action which concluded his posts were homophobic, harassing, discriminatory, offensive and damaged the school’s reputation, all contrary to school policies and its code of conduct.
Employment Tribunal Decision: The caretaker’s claim of direct belief discrimination leading to the school’s disciplinary investigation was not substantiated on the basis the school had an obligation to trigger an investigation into any complaint lodged by a parent. As such, it was not the caretaker’s beliefs but the parent’s complaint that led to the investigation. Furthermore, as the caretaker had resigned before any disciplinary action had been handed down, his claim of constructive unfair dismissal
was rejected.
However, the ET decided there had been indirect discrimination as the school’s disciplinary policies had put those with certain religious beliefs at a disadvantage. By choosing to give the caretaker a final written warning for his tweets, the Tribunal held the school had acted disproportionately, as there were lesser options available which would have more reasonably dealt with the objections received from parents and
others in the community.
Forstater v CGD Europe and others – 6 July 2022
A public policy think-tank contract employee engaged in extensive social media posts concerning gender recognition issues, expressing beliefs there were only two genders and that born sex is binary and biologically immutable, including with trans people. After other staff raised concerns, her contract as not renewed and her profile was removed from the employer’s website.
Employment Appeal Tribunal Decision: Even though the social media posts may have been hurtful and have the potential to end in the harassment of trans people, the employee’s beliefs were protected by the Equality Act, as well as falling within the protections of the (ECHR). As such, the non-renewal of her contract and profile removal constituted discrimination and victimisation respectively. Concerning determination of the threshold of when a belief became protected by statue, the Tribunal held the law set this at a fairly low level, with no need to enquire into the validity of a belief but instead encouraging opposing groups to tolerate each other’s beliefs without judging if one belief was more acceptable or valid than another.
Some learning points of interest for Australian employers from these cases include:
(1)Employers still need to take reasonable action
While the UK statues may be different, the Fair Work Act 2009 and other Federal/State/Territory legislation provide extensive protections for Australian employees. Accordingly, the above cases can be seen to reinforce the protections of those with philosophical, religious, gender and political beliefs.
Employers should note that to warrant statutory protection, the belief held by an employee would normally:
-not be a mere opinion or viewpoint;
-be genuine;
-not be incompatible with human dignity or conflict with the fundamental rights of others.
As such, employers cannot simply ignore the rights of trans people or other groups who are also protected from workplace acts which may discriminate or victimise them. For example, staff who may have gender critical beliefs should not be able to refer to trans people by the opposite gender to their identification.
(2)Be aware of employee beliefs
Employers, and all line managers, must ensure they avoid treating employees less favourably for any reason arising from their personal beliefs.
Going forward -Employers should ensure they have comprehensive, up to date policies which require the dignified treatment of other staff of all religious or philosophical beliefs. -If issues arise, employers should carefully and impartially investigate the matter and arrive at disciplinary outcomes which can be seen as being reasonable and proportionate to the situation, and recognising the beliefs of staff members involved. Arranging for alternative and appropriate remedies such as moderated meetings, apologies and verbal warnings should always be considered as options to serious disciplinary outcomes. -O’Connell TELS have extensive experience in assisting employers needing to deal with belief situations.
