Legal framework and key principles
Equality Act 2010
The Equality Act 2010 provides comprehensive protection against discrimination based on religion or belief. This includes direct and indirect discrimination, harassment, and victimisation. Direct discrimination occurs when an individual is treated less favourably due to their religion or belief, while indirect discrimination involves policies that apply to everyone but disadvantage a particular religious group unless objectively justified.
European Convention on Human Rights (ECHR)
Article 9 of the ECHR protects the right to freedom of thought, conscience, and religion, including the freedom to manifest one's religion or beliefs. However, this right is qualified and can be restricted if necessary in a democratic society for the protection of public safety, order, health, or morals, or the rights and freedoms of others.
Case law and proportionality
Ngole v Touchstone Leeds
In Ngole v Touchstone Leeds, the Tribunal found that the withdrawal of a job offer due to the applicant's negative social media posts about homosexuality was not proportionate. The Tribunal applied the four-stage test from Bank Mellat v HM Treasury to determine proportionality: the importance of the objective, the rational connection to the objective, the possibility of less intrusive measures, and the balance between the measure's effects and the objective's importance. The Tribunal concluded that Touchstone could have achieved its aims through less intrusive means, such as seeking assurances from Ngole before withdrawing the offer.
Orwin v East Riding of Yorkshire Council
In contrast, the Tribunal in Orwin v East Riding of Yorkshire Council upheld the dismissal of an employee who added provocative gender-critical statements to his email signature. The Tribunal found that the manifestation of his beliefs was not protected as it was deliberately provocative and not necessary for adhering to his beliefs. The decision emphasised the importance of context and the potential impact on the employer's reputation and service users.
Higgs v Farmor’s School
The case of Higgs v Farmor’s School further illustrates the complexity of balancing rights. Mrs. Higgs was dismissed for Facebook posts criticising LGBTQ+ education. The Employment Appeal Tribunal (EAT) remitted the case for a rehearing, emphasising the need to assess whether the posts were a manifestation of her beliefs and whether the school's actions were proportionate. The EAT provided guidance on assessing proportionality, including the content and tone of the manifestation, the likely audience, and the impact on others.
Practical steps for employers
Policy development and training
Review policies: Ensure that all workplace policies, including social media and dress code policies, are inclusive and do not inadvertently discriminate against any religious group.
Training: Provide training to all employees on the importance of respecting diverse beliefs and the potential impact of discriminatory behaviour.
Handling complaints and disciplinary actions
Investigate thoroughly: Avoid knee-jerk reactions and ensure a thorough investigation of any complaints related to the expression of beliefs.
Proportionality assessment: Before taking disciplinary action, conduct a proportionality assessment considering the content, tone, and context of the manifestation, and whether less intrusive measures could achieve the same objective.
Additional considerations
Balancing competing rights
Employers must balance the right to freedom of expression with the need to maintain a safe and inclusive environment. This involves considering the potential impact on other employees and the organisation's reputation.
Social media use
Given the potential for social media posts to go viral, employers should have clear policies on social media use, emphasising the importance of respectful and considerate communication.
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