log in
All Articles | Back

Member Articles


What to do when protected characteristics clash? Five top tips for employers 

by Shoosmiths LLP

Published: October, 2021

Submission: October, 2021

 



The potential for employees with differing protected characteristics to come into conflict with one another at work is an increasing problem for employers. We set out five top tips for employers when handling such conflicts in the workplace.


Current caselaw

Discrimination law in the UK protects those who have a protected characteristic, whether that be their race, religion or belief, sex, sexual orientation, disability or age among others.


Several recent court and tribunal decisions discussed below have highlighted the growing importance of employers properly managing employees with differing protected characteristics in the workplace, particularly where there is potential for those protected characteristics to be at odds with one another or to come into conflict.


This issue is going to become more prevalent as more beliefs are brought within the scope of a protected characteristic. The Forstater decision is a reminder that the definition of a philosophical belief worthy of protection is potentially very wide, meaning that a number of beliefs could be deemed a protected characteristic, provided that the conditions set down in the case of Grainger plc and others v Nicholson are met; specifically that the belief must:


  1. be genuinely held


  2. be a belief and not an opinion or viewpoint based on the present state of information available


  3. be a belief as to a weighty and substantial aspect of human life and behaviour


  4. attain a certain degree of cogency, seriousness, cohesion and important and


  5. be worthy of respect in a democratic society.


It will be interesting to see how this develops, particularly in relation to the impact of the recent pandemic. It is likely that over the course of this year we will see an argument made out that being anti-vaccination amounts to a protected belief. If it does, then those employers in sectors which require vaccinations to be mandatory will be left managing the resultant conflict.


While Forstater has helped clarify the scope of what amounts to a belief as a protected characteristic, it does not fully resolve the question of how employers should manage situations where an employee holds beliefs or expresses views which are at odds with the beliefs or protected characteristics of other employees. How does an employer navigate such terrain in practice? We set out below our top five tips for employers grappling with such questions.


Top tips

  1. It is not for the employer to make value judgements about an employee’s beliefs.
    The cases that have found their way to the courts and tribunals have made clear that a wide spectrum of beliefs are worthy of protection and only those at the most extreme, for example Nazism, will not be worthy of protection. This is important for employees to remember. Where the beliefs of an employee clash with those of a colleague and conflict arises, the employer should not make any assessment as to which belief is more important. Even the courts themselves have steered away from doing this.


  2. Be clear that any action taken is not because of the protected characteristic.
    The employer cannot control the employee’s belief; however it can limit the extent to which those beliefs can be expressed or acted upon in a place of work. That has been a key theme of the decisions which found their way to tribunal included Ladele, McFarlane and Higgs.

    For example, in Ladele v The London Borough of Islington, a Christian registrar refused to carry out civil partnership duties on the basis that same sex relationships were against her religious beliefs. Her employer commenced disciplinary proceedings as her behaviour breached its dignity at work policy and she was dismissed for gross misconduct. The decision to dismiss was upheld by the Court of Appeal.

    A similar situation arose in McFarlane v Relate Avon Ltd. A relationship counsellor refused to provide counselling services to same sex couples on grounds of his religious beliefs. The employer dismissed Mr McFarlane for breaching its equal opportunities policy and this decision was upheld.

    In Higgs v Farmor’s School, a pastoral administrator at a school posted comments on Facebook expressing her belief that sex and gender are set at birth and cannot be changed. She was dismissed for breaching the school’s conduct policy, including in relation to discrimination and serious inappropriate use of social media. The Employment Tribunal held that the action of the school was not on the ground of Mrs Higgs’ belief but rather because of how those views might reflect negatively on the school, its pupils, parents, staff and the wider community.

    The theme from all of these decisions is that while the employees in question have protected characteristics meriting protection, employers are entitled to take action where behaviour linked to a protected characteristic is at odds with its priorities of ensuring fairness and equality.


  3. Be mindful and balanced when taking disciplinary action against an employee for reasons related to their belief.
    Ladele, McFarlane and Higgs were found to be fair dismissals because the employer focussed on the fact that the behaviour in question breached dignity at work/conduct/social media/race relations policies. However, there have been cases in which the employer has erred and disciplined the employee for their beliefs as opposed to the problematic manifestation of them. This takes us back to point one above – it isn’t for the employer to form a view on whether the employee’s belief is right or wrong, assuming it is potentially worthy of protection. The focus should be on the problematic behaviour which is marginalising/mistreating others in grounds of their protected characteristic. Employers are well advised to keep this in mind.


  4. The focus is on the protected characteristic of the person subject to less favourable treatment, not the protected characteristic of the alleged discriminator.
    When employers are dealing with conflicting beliefs within the workplace, it is worth remembering that claims for harassment can be very subjective and arise where unwanted conduct related to a protected characteristic is offensive to an individual, even if that was not what was intended by the individual engaging in the conduct.  Where the individual subjected to the harassment and the individual responsible for it both have a protected characteristic, employers should focus on the individual subjected to the harassment and the reason for their treatment when deciding what action is appropriate to take.


  5. Have clear policies in place, particularly in relation to social media
    Personal social media takes us into a grey area – what if a colleague of an employee expresses views online which cause offence to another employee on grounds of his/her protected characteristic even if the employee making those comments does not identify themselves on their social media as an employee of the employer? As noted in relation to the Higgs case above, what is key is that employers have a clear social media policy in place setting out what is and is not acceptable behaviour from their employees on social media and seek to apply that policy in a consistent manner.


Summary

The above top tips will help employers navigate this complex and emotive area of employment law. Managing such situations successfully will be key to maintaining a rich cultural environment for all.


 



Link to article

 

MEMBER COMMENTS

 

 

WSG Member: Please login to add your comment.

    Disclaimer

WSG's members are independent firms and are not affiliated in the joint practice of professional services. Each member exercises its own individual judgments on all client matters.

HOME | SITE MAP | GLANCE | PRIVACY POLICY | DISCLAIMER |  © World Services Group, 2021