The conundrum of competing rights

Government initiatives, legal disputes, media coverage and public debate have established gender identity and transgender rights as a hot topic for the 2020s and, as always, where there is scope for different viewpoints, those differences can lead to conflict in the workplace.

For several years, employers have been managing workplace disputes on topics which polarise opinion and where discrimination risks can arise. Probably the most common area for dispute so far has resulted from religious beliefs about sexual orientation. Friction has also arisen from different political viewpoints.   Although support for a political party is not in itself a philosophical belief, belief in a political doctrine can qualify and employment tribunals have held that, for example, beliefs in national independence are protected. In early 2024, a tribunal decided that anti-Zionist beliefs could qualify as a philosophical belief.

Most recently, however, gender identity has become the topic demanding employers’ attention as the debate intensifies between individuals who are transgender, or who hold gender identity beliefs, and those whose religious beliefs or gender critical beliefs are in direct conflict.   People have become used to expressing their views on such topics frankly, including on social media, and even where colleagues are not the intended audience, ramifications frequently materialise at work leaving the employer with a delicate balance to strike between conflicting opinions.

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.

Latest case law

The Employment Tribunal (ET) held that anti-Zionist beliefs amount to a philosophical belief qualifying for protection under the Equality Act 2010.
The employee's gender critical beliefs fall within the Grainger criteria and are therefore protected. The Tribunal upheld her discrimination complaints and constructive dismissal claim, as the employer had breached the implied term of trust and confidence and the duty to provide a suitable working environment.
The EAT set out ‘basic principles’ underpinning the approach when assessing the proportionality of any interference with rights to freedom of religion and belief and of freedom of expression.
The employer failed to balance conflicting protected characteristics and protect both trans workers and workers with gender critical beliefs from discrimination and harassment
The EAT acknowledged that this case may touch on issues of wider social concern and debate. It made clear that it expressed no view as to the merits of any side of that debate, as it is not the role of the EAT to do so.
The EAT held that gender-critical beliefs, including the belief that sex is binary, immutable and not to be conflated with gender identity, qualify for protection as a philosophical belief under the Equality Act 2010.
A school chaplain's claim for religion or belief discrimination failed when the Employment Tribunal held that the chaplain’s treatment was not because of his beliefs, but because of his objectionable manifestation of them.
A belief that Stonewall wanted to replace sex with gender identity, that the absolutist tone of its advocacy of gender self-identity made them complicit in threats against women and that it eroded women’s rights and lesbian same-sex orientation was a protected belief.
This case concerned the expression, on a public social media platform, of religious views disapproving of homosexual acts by a student enrolled on a course at the University of Sheffield
The European Court of Human Rights upheld the decisions of the UK Courts that employers can refuse to accommodate demonstrations of religious beliefs if they are discriminatory against others.
The EAT sets out the legal test that must be satisfied in order for a belief to be a philosophical belief worthy of protection under the Equality Act 2010.
Dismissing an employee for not carrying out contractual duties is not direct or indirect discrimination. It may be reasonable for an employer to ensure an employee complies with its non-discriminatory policies and practices, although this may offend or conflict with the beliefs of the individual.

News and views on competing rights

Balancing the rights of all individuals within an organisation is a significant challenge for employers. Here are ten tips to help navigate that challenge and avoid potential conflicts in the workplace. 
As well as prohibiting discrimination on grounds of religion or belief in the employment sphere, the Equality Act 2010 also prohibits discrimination against a service user by a provider of goods, services or facilities.  
As part of its inquiry, the Committee is considering if domestic law strikes the right balance between the rights of employers and the rights of workers to freedom of religion or belief and freedom of expression.