How to deal with conflicting protected characteristics

He regularly quotes bible passages in his social media accounts and is often seen delivering sermons as a lay pastor. 

Folau is now facing public shame for ill-considered social media postings including anti-gay slurs, which led to his dismissal from the Sydney Waratahs and the termination of his central contract with Rugby Australia. His Twitter postings referred to a long list of “sinners” and he indicated that hell awaited homosexuals. He is now bringing legal action against his dismissal on the grounds of freedom of expression and that his Christian beliefs warrant protection. 

Difficult questions abound as to how the law recognises and deals with conflicting equality beliefs and it is useful to consider what learning points there might be here for UK employers. 

UK Equality Act 

In the UK, the Equality Act recognises nine protected characteristics and all have equal status. There is no guidance on what happens where a conflict arises between an individual holding a religious belief and another individual’s sexual orientation status, but the interaction between religious views and homosexuality is definitely the most common issue that crops up in practice.  

We have seen cases where a Christian registrar refused to carry out their duties in relation to civil partnerships and where disciplinary action was found not to be discriminatory in the context of a public sector employer promoting equal opportunities. There was also a case where a Christian relationship counsellor was dismissed for refusing to provide sexual counselling to same sex couples. Again, this was non-discriminatory in the view of the tribunal as the employer had pledged an equal opportunities policy to the public.

For employers dealing with the moral and legal maze that these cases present, the key thing is to act in a proportionate manner. Although the law protects employees who hold religious beliefs, it does not give them carte blanche to express those views regardless of the impact on others. 

There will inevitably be a delicate balance for employers to strike and there is also a danger of creating a hierarchy of protected characteristics, effectively suggesting that some characteristics are more worthy of protection than others. Such a hierarchy does not exist in the equality legislation and it is risky for employers to treat one strand of discrimination as being more weighty or significant than another.

Vicarious liability 

As employers can be held vicariously liable for the actions of employees, the best guidance is that when an employee’s promotion of their protected views negatively reflects on the differing protected beliefs of others, policies are implemented to ensure that any hostile or humiliating treatment of others is minimised and corrected.

Employers are also advised to have tightly drafted social media polices to manage the risk of harassment and discrimination claims and to be consistent in their approach to these workplace issues.

Philosophical beliefs 

Religion and philosophical belief employment tribunal cases are on the increase in the UK. There can be particular difficulties for employers in identifying what a philosophical belief actually is and how to treat employees who hold such beliefs. Case law indicates that such beliefs must have similar status or cogency to a religious belief, but need not be an "ism". The beliefs must be genuinely held and must be a belief and not a viewpoint or opinion. 

Clearly, some of these points are very nuanced and open to interpretation. For example, it has been found that support of a political party will not be a belief, but a belief in a political philosophy might qualify and this obviously opens up the potential for further arguments around, for example, people who hold Scottish Independence beliefs or Brexit beliefs. 

Employers should pay attention to this evolving area and be alert to the fact that a wide and ever increasing range of employee beliefs may be protected under the Equality Act.

This article was first published by People Management.

You can read a complementary article on the impact of social media in these cases, including advice regarding social media policies and handling cases here. 

We discuss this and other similar cases in the 'Philosophical beliefs' episode of our podcast, Employment Law Focus. Subscribe now or listen online. 

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at July 2019. Specific advice should be sought for specific cases. For more information see our terms and conditions.