The laws relevant to this area are contained in both the Equality Act 2010 and the European Convention on Human Rigdhts (ECHR) to which the United Kingdom is a signatory and which was enacted by the Human Rights Act 1998.

European Convention on Human Rights

Under the ECHR, individuals have rights:

• under Article 9, to freedom of thought, conscience, and religion, including freedom to manifest their religion or belief;
• under Article 10, to freedom of expression, including freedom to hold opinions and to receive and impart information and ideas without interference; and
• under Article 8,  to respect for private and family life, home, and correspondence.

According to the ECHR, exercise of these rights cannot be limited or interfered with except in accordance with law and where this is justified and necessary in a democratic society to protect certain legitimate interests, including the protection of the rights and freedoms of others.

The UK’s Human Rights Act requires courts and tribunals to read and give effect to any statutory provision in a way which is, so far as possible, compatible with the ECHR rights. This means that where an employee’s actions are a manifestation of their religion or belief and their employer takes measures in response, the ECHR rights will be relevant to an assessment of whether the employer has discriminated against them.

Equality Act 2010 and protected characteristics

The Equality Act 2010 provides protection against direct and indirect discrimination, as well as harassment and victimisation on grounds of an individual’s age, disability, gender reassignment, marriage/civil partnership, pregnancy and maternity, race, religion or belief, sex or sexual orientation, each of which is known as a ‘protected characteristic’.

No right takes precedence

The protection available under the Equality Act 2010 applies equally to each of the protected characteristics, so no characteristic ranks more highly or attracts more protection than another. This is where the challenge lies for employers, who can be faced with having to balance the equal, but competing, rights of different individuals.

Examples of situations which might require employers to carry out this balancing act might include where an employee:

• refuses to provide services to same-sex couples based on religious belief;
• expresses or promotes negative views of homosexuality based on religious belief;
• expresses or promotes negative views of transgender identity or gender identity belief based on either religious or gender critical beliefs;
• refuses to use an individual’s preferred pronouns or deadnames them based on either religious or gender critical beliefs.

Our case law reports consider the outcome of proceedings in which scenarios like those listed above were considered by the courts.

Protection of beliefs

The prohibition of discrimination on the grounds of religion or belief has been in effect for over 20 years and a significant body of case law has built up, interpreting the provisions of the relevant legislation.

A key question in many instances has been whether a particular belief qualifies for protection and the test for determining this was decided by the Employment Appeal Tribunal (EAT) in the case of Grainger plc v Nicholson. The EAT set down five criteria for establishing a protected belief, including a requirement that the belief must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.

Whether gender critical beliefs fulfilled this particular Grainger criterion was considered in Forstater v CGD Europe & Others. Although the employment tribunal concluded that Forstater’s beliefs did not qualify for protection, as they were not worthy of respect in a democratic society, the EAT disagreed, holding that only beliefs akin to Nazism or totalitarianism, or which espouse violence and hatred in the gravest of forms, would fail the test of being worthy of respect.

Following Forstater, it is clear not only that individuals holding gender critical beliefs are protected by the Equality Act, but also that the scope of beliefs protected by the legislation is wide and can include beliefs which others might find controversial or offensive.

Manifestation of religion or beliefs

When attempting to balance competing rights, it is crucial for an employer to be aware that under the ECHR an individual has a right to both hold and to manifest their beliefs. As explained above, the scope for interference with these rights is very limited.

Taking adverse action against an individual simply for holding a protected belief will amount to discrimination. In this vein, employers should ensure that an employee is not challenged about their beliefs or asked to justify their position, nor should attempts be made to persuade them to change their view.

Where an employer may be able to intervene is in relation to conduct which is a manifestation of an individual’s belief that is objectionable, when considered on an objective basis. Identifying such conduct can be tricky, however, and employers need to differentiate between situations where:

• the employee is manifesting their belief in a way that is not objectionable, in which case no action should be taken;
• the employee is manifesting their belief in a way which might cause offence to some but which is not objectively objectionable, in which case no action should be taken; or
• the employee is manifesting their belief in a way which is objectively inappropriate and objectionable. In these circumstances, the employer may be able to take action in response, but only where such action is justifiable given the consequences of the employee’s conduct.

Balancing the rights of all individuals within an organisation is a significant challenge for business. However, it is not one that is impossible to overcome and will form an important part of an employer’s approach to the promotion of diversity, equality and inclusion in the workplace.

Measures which can be taken to achieve the required balance will include instilling a culture of dignity and respect; providing policies and procedures which act as everyday guidance and are kept up to date; implementing regular training throughout the business on diversity issues; having clear guidelines on acceptable behaviour; and implementing conflict resolution plans.

• Equality Act 2010
• European Convention on Human Rights
• ACAS guide on religion or belief discrimination
• CIPD Guidance: Transgender and non-binary EDI in the workplace
• EHRC Guidance on gender reassignment
• EHRC Employment Code on gender reassignment
• EHRC Guidance on separate and single-sex service providers
• Supporting trans employees in the workplace | Acas   Note: this expressly states that it is not intended as guidance from Acas on managing trans employees in the workplace. Previous Acas guidance on gender reassignment has been withdrawn and not reissued.