When protected characteristics collide: getting the balance right for employers

In light of Australia’s National Rugby League ‘pride jersey’ controversy, Jonathan Rennie explains how businesses can respect the rights of every employee

The considerable benefits of a more diverse and inclusive workplace are now well established, with employers increasingly seeking to promote a workforce made up of a wide variety of people with different backgrounds, cultures, faiths and communities.

Occasionally, however, the different facets of diversity and inclusion can collide – as the Manly Warringah Sea Eagles recently discovered. The Australian rugby club faced significant backlash after unveiling a pride jersey to promote LGBTQ+ inclusion in sport, with almost half their team boycotting a key match on the basis that they could not wear the jersey because of their religious and cultural beliefs. 

The club has apologised for the ‘poor execution’ of the initiative, saying that players and coaching staff should have been informed and consulted beforehand and noting that the resulting furore had caused significant discomfort and pain for many people, including the LGBTQ+ community they had been trying to support.

The story serves as a reminder of the complexities of managing employees who have different (and potentially conflicting) protected characteristics.

Religious and philosophical beliefs

An employee’s religion or philosophical beliefs are protected under the UK Equality Act, in the same way as sexual orientation, gender, race and all other protected characteristics. 

The case law so far has demonstrated that a wide range of beliefs will be legally protected including ethical veganism; a strongly held belief about climate change and the environment; Scottish independence; anti-fox hunting; and – following the recent and highly publicised decision in Forstater v CGD Europe – ‘gender critical’ views.

Employees are entitled to a religion or belief that is ‘worthy of respect in a democratic society’, even where it might be controversial or ‘profoundly offensive’ to others.

It is easy to see, then, how the religion or belief of one employee may clash with the protected characteristics of another. So far, we have seen this most commonly in the interaction between one person’s religious beliefs and another’s sexual orientation. However, as an increasing number of beliefs are confirmed to be worthy of legal protection, there is even greater scope for collision.

Clearly, this is a delicate balance for employers to strike. While there is no right not to be offended, employees are entitled to be protected from harassment and discrimination and an employer can be held vicariously liable for the actions of other employees. 

Key takeaways for employers

For employers dealing with the moral and legal maze these issues present, the key takeaway is to act in a proportionate manner while respecting the rights of all involved. 

Employers should ensure there is no hierarchy of protected characteristics under UK law. A range of beliefs are considered worthy of protection and businesses should not try to make value judgements as to which belief or other protected characteristic should be given greater weight. 

Importantly, while employees are entitled to their religion or belief, they do not have carte blanche to express them in a manner that negatively impacts upon others. Any inappropriate manifestation of their belief (such as discriminatory comments or actions) will not be protected. 

Employers should feel empowered to take action then, where the outward expression of a protected belief is resulting in the hostile or humiliating treatment of other employees. In doing so, they should take care to focus on the conduct itself, as opposed to any religion or belief at the root of it. A tightly drafted disciplinary and social media policy will form a key element of that strategy, as will ensuring that policies are applied consistently and fairly. 

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.

Within the sports sector, it is interesting to note the approach of the Arizona Cardinals NFL team, which has a contractual requirement with its star player, Kyler Murray, that he undertake four hours of game study per week. The question arises then as to whether mandated EDI training could become a contractual term required of sports players who may find themselves on the receiving end of discrimination, or find themselves accused of improper behaviours because of a lack of knowledge and understanding. 

First published in People Management.