Matter of Opinion or Protected Belief?
When is something more than just an opinion, to the extent that a person is protected in law from being discriminated against on the grounds of it?
The Equality Act 2010 sets out the definition of a protected belief, which includes a religious or philosophical belief, or lack of. What amounts to a philosophical belief can give rise to issues in practice and over the years a body of case law has built up on what does and doesn’t amount to a philosophical belief.
The Equality and Human Rights Commission’s Guidance says that employers should only question a belief in exceptional circumstances, for example if it is obscure, it appears to be objectively unreasonable, or there is doubt as to the person’s sincerity.
The leading case on philosophical belief is Grainger Plc and others v Nicholson. Mr Grainger had a belief in man-made climate change and a resulting moral obligation to act. He was made redundant and claimed he was unfairly dismissed and discriminated against due to his philosophical belief. Mr Grainger asserted that his belief affected many aspects of his life including his choice of home, how he travelled and what he bought. At a preliminary hearing the Employment Tribunal concluded that his belief amounted to a philosophical belief and the employer appealed this decision.
The Employment Appeal Tribunal upheld the Tribunal’s decision that Mr Grainger’s belief was a philosophical belief and in doing so set out five criteria that employers and Tribunals should take into account in determining whether a belief is protected:
- The belief must be genuinely held. It isn’t for the employer to question the validity of the belief, only to enquire as to whether it is genuinely held.
- It must be a belief and not an opinion or viewpoint based on the present state of information available. There should be an underpinning belief system.
- It must be a belief as to a weighty and substantial aspect of human life and behaviour.
- It must attain a certain level of cogency, seriousness, cohesion and importance. There must be a logic or cogency to it, similar to that of a religious belief.
- It must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.
It is the final criteria which has proven to be the most difficult to grapple with in practice, specifically where minority beliefs are in question. However, the EAT's decision in Forstater v CGD Europe and others shed some light on this.
Ms Forstater was a Visiting Fellow at CGD and was on a fixed term contract.
Her belief is that a person’s sex is an immutable biological fact, not a feeling or an identity and that a trans woman is not in reality a woman. She believes that, whilst a person can identify as another sex and ask other people to go along with it, and can change their legal sex under the Gender Recognition Act 2004, this does not change their actual sex.
Ms Forstater engaged in debates on social media about gender identity issues and in doing so she made some remarks which some trans people found offensive. Some of her colleagues complained that they found her conduct offensive. As a result, there was an investigation and at the end of her fixed term contract her fellowship was not renewed.
Ms Forstater brought an Employment Tribunal claim alleging that the non-renewal of her contract amounted to discrimination on grounds of her gender critical belief, which constituted a protected philosophical belief.
At a preliminary hearing, the Tribunal concluded that Ms Forstater’s belief did not qualify for protection as her views were not worthy of respect in a democratic society and therefore didn’t satisfy the fifth Grainger principle.
Ms Forstater appealed and the Tribunal’s decision was overturned by the EAT which looked in some detail at the fifth Grainger principle. The EAT held that the way in which a belief is manifested is only dissociable from the belief itself where it is done in a manner which is inappropriate or to which objection can reasonably be taken. Whilst Ms Forstater’s tweets and other communications may have been provocative, they were little more than an assertion of her core belief which could not be objected to even though it was capable of causing offence.
The EAT acknowledged that, where a belief is protected, then straightforward statements of that belief must also be protected. It also allowed Ms Forstater a certain latitude in how her belief could be legitimately expressed, for example, by accepting that satirising or mocking an opposing view is part of the 'common currency of debate' and should be protected to some degree.
Where to draw the line in allowing individuals to express their views will be a fact-sensitive question, but the EAT made it clear that there is a low threshold in showing that the fifth Grainger criteria has been met.
Ms Forstater's belief was a protected belief and, despite causing offence to some, she had manifested that belief in an acceptable way. So, let's contrast this decision with a case where the issue was not the belief itself but the way in which it was manifested.
In Mackereth v DWP & Anor, the EAT found that a Christian doctor was not discriminated against by a requirement on him to use the preferred pronouns of transgender service users. Dr Mackereth applied to work as a health and disabilities assessor (HDA) at the Department for Work and Pensions (DWP). The role of HDA required Dr Mackereth to assess claimants for disability-related benefits, including conducting face-to-face assessments and writing reports. This included working with transgender service users.
In May 2018, Dr Mackereth commenced an induction course. During a discussion, one of the other HDAs asked how they should refer to someone who was transgender. The lead physician responded, in accordance with the DWP's policy, that transgender individuals should be given their preferred name and title and always be referred to in their presented gender. Dr Mackereth explained that, due to his beliefs, he did not object to using whatever first name the service user wished but he did object to using pronouns or titles inconsistent with their birth gender. Following some further discussions and a failed attempt to find a way in which Dr Mackereth may be able to carry out the role without needing to assess transgender service users, the DWP wrote to Dr Mackereth to advise that he could not work as a HDA.
The EAT found that the Tribunal had erred in applying the criteria from Grainger to determine whether these beliefs were capable of protection under the Equality Act 2010. In particular, the Tribunal had erred in holding that the beliefs were not worthy of respect in a democratic society. The EAT stated that this threshold must be set at a low level so as to allow for the protection, not just of beliefs acceptable to the majority but also of minority beliefs that might cause offence.
However, the EAT held that the Tribunal did not err in dismissing the claims of direct discrimination, indirect discrimination and harassment on grounds of religion or belief because of Dr Mackereth's refusal to address transgender service users by their chosen pronouns. The EAT held that it was permissible to draw a distinction between Dr Mackereth’s beliefs and the way he manifested them, finding that any employee not prepared to utilise a service user’s chosen pronoun would have been treated the same way. So, despite his beliefs being protected, it was not unlawful discrimination for Dr Mackereth's employer to disallow this particular manifestation.
This demonstrates the delicate balance between the right to hold a belief and the conduct of an individual in carrying out the expression of that belief. In some cases, it will be possible to draw a distinction between the protected belief and the manifestation of that belief, where everyone would be treated in the same way, irrespective of their beliefs.
Where does that leave universities now? The EAT has made clear that (for now) Forstater is good law and there is a low threshold for a belief to fall within the scope of protection under the Equality Act 2010. Even offensive and shocking beliefs can be protected, as long as they do not destroy the rights of others. Nevertheless, employers still have the right to restrict the manifestation of a protected belief in the workplace where doing so is necessary, proportionate and in pursuit of a legitimate aim. Treating people with respect and an overarching commitment to equal opportunities are likely to constitute legitimate aims for this purpose but the lawfulness of any restrictions will depend on proportionality and the availability of any alternatives that do not impinge on a person’s freedom to manifest their belief.
It is important to remember that, even if an employee has a protected belief, an employer may still be entitled to take action to prevent that employee from discriminating against others or causing offence. Employers shall need to tread carefully when balancing the rights of two or more individuals but can take some comfort from the fact that there is a distinction to be drawn between a person having a protected belief and the way in which they manifest or express that belief.
