The Equality Act 2010 applies to many different life areas that affect B-Corps, particularly as employers and service providers. What can we learn from recent legal cases about how the Act prohibits direct and indirect discrimination, harassment and victimisation relating to philosophical beliefs?

The law recognises an increasing number of philosophical beliefs as protected, and many of those beliefs are the subject of heated debate in society, including:

  • A belief in climate change;
  • Ethical veganism (in some cases), but not vegetarianism;
  • The gender critical belief that sex is binary and immutable and not to be conflated with gender identity; and
  • The anti-Zionist belief that Zionism (the ideology that a state for Jewish people ought to be established and maintained in the territory that formerly comprised the British Mandate of Palestine) is inherently racist, imperialist, and colonial.

Employers and service providers are in a difficult position because they may be held liable for actions they (or their employees) have taken, but also if they fail to take action where required. In every case, a balancing act is required – have you considered who is affected and how? And can you explain why you took the decisions you did? If you acted proportionately and were not motivated by your employee or customer’s protected beliefs, that will help you defend an allegation that you acted unlawfully. Three recent cases provide useful examples of how the law works and what traps employers can avoid falling into.

Ali v The Green Party

The county court decided that it is not discriminatory for a political party to remove a spokesperson on the grounds of belief (including gender critical belief), provided it follows a fair procedure in doing so. That is because it is core to democratic society that people have rights to advocate for or against party policies, criticise beliefs or conduct which are inconsistent with those policies, and organise for or against members who support or oppose party policies. We discuss this case further in our blog.

The position is different for employers and service providers, even though the same debate often plays out in the workplace and society at large. In seeking to defend claims of direct discrimination or harassment, they will need to consider very carefully issues of free speech and whether the actions they take are motivated by their employee or customer’s gender critical beliefs.

Meade v Westminster City Council

A social worker regulated by Social Work England (SWE) and employed by Westminster City Council (WCC) shared messages on her private Facebook profile expressing gender critical views to 40 friends and colleagues. One complained to SWE that the posts were transphobic.

She successfully claimed that decisions taken by SWE and WCC to issue warnings, suspend her from work and subject her to a prolonged disciplinary process because of her gender critical beliefs constituted harassment. SWE and WCC had not struck a proportionate and fair balance between her right to freedom of expression and the interests of those offended by her Facebook posts.

To make sure you are acting proportionately, consider:

  • What is your objective? Is it sufficiently important to justify the limitation of the employee’s right?
  • Is the limitation rationally connected to your objective?
  • Could a less intrusive limitation be imposed?
  • Does the severity of the limitation on the rights of the worker outweigh the importance of the objective?

These issues often arise in relation to social media posts. Where an employee manifests their belief in this way, consider:

  • What do the posts say?
  • How is it said (the tone used)?
  • How extensive are the posts?
  • Who did the employee think would read them?
  • How far do they intrude on the rights of others? How, and is there any impact on the employer’s ability to run its business?
  • Is it clear that the views expressed are personal? Or could they be seen as representing the employer’s views, posing a reputational risk?
  • Is there a potential power imbalance between the employee and those whose rights are intruded upon?
  • Is there a potential impact on vulnerable service users or clients?

In this case only one person had been offended by the posts and Ms Meade was generally not articulating her own views but forwarding links to articles or comments about the gender critical debate. There was no evidence that these views were expressed in the context of her professional duties and her Facebook profile did not include any detail about her profession. In their decision-making process WCC and SWE failed to acknowledge that Ms Meade was entitled to manifest her beliefs before considering whether posts may have been unacceptable.

Phoenix v The Open University

Joanna Phoenix was employed as a Professor at the Open University (OU) and established a Gender Critical Research Network (GCRN) which focused on the importance of sexed bodies in different academic disciplines. Following a hostile public campaign by her colleagues against her research and the GCRN, she successfully claimed that she had been subjected to harassment and direct discrimination for her gender critical beliefs. The OU did not do enough to protect her from harm and failed to balance the harm she experienced compared to trans staff and students.

Harassment

Harassment occurs if, because of the employee’s protected characteristic (in this case, a gender critical belief), an employer, or its employees acting in the course of their employment, engages in unwanted conduct which has the purpose or effect of violating the employee’s dignity or creating an adverse environment.

In this case, the OU was directly liable for its failure to protect Professor Phoenix and vicariously liable for the conduct of its employees, which included:

  • The publication and signing of an open letter by over 360 people, including OU employees, condemning the GCRN;
  • Repeated accusations against Professor Phoenix of transphobia, bad faith and of deliberately trying to provoke trans communities in setting up the GCRN;
  • Implications that the GCRN put human lives at risk; and
  • A colleague comparing her to a ‘racist uncle’ because of her beliefs.

Some of this happened on social media platforms. Social media activity will not always amount to ‘conduct in the course of employment’ for which an employer is vicariously liable, but in this case statements from OU academics were habitually made as part of the academic debate surrounding gender identity.

Professor Phoenix was not successful in establishing harassment in relation to the conduct of her grievance by the OU. The breadth of her grievance meant that a 6 month delay was reasonable, and it was accepted that the OU gave no date for the outcome in order to manage expectations and not because of her gender critical beliefs.

Direct Discrimination

Direct discrimination occurs where someone suffers less favourable treatment than an appropriate comparator ‘because of’ a protected characteristic such as their philosophical belief. In this case, the tribunal found that Professor Phoenix suffered direct discrimination when she was not praised at department meetings for significant academic achievements whilst others were, and when she was instructed by her head of department not to speak about her research to other team members.

Victimisation

An employee suffers victimisation if their employer subjects them to a detriment related to the Act, including alleging that the employer is in breach of it or issuing a claim for breach. In this case the OU terminated its investigation into Professor Phoenix’s grievance after she brought a claim, but she was still entitled to receive an outcome so this was a detriment which amounted to victimisation.

If you’re a B Corp looking to find out more about inclusion of beliefs in the workplace, please do get in touch with our team who would be happy to help.

The material in this article is provided for guidance and general information only and is not intended to constitute legal or other professional advice upon which you should rely. In particular, the information should not be used as a substitute for a full and proper consultation with a suitably qualified professional. Please do contact the Bates Wells team if you require further information.