Following on from recent case law relating to the protection of religious and philosophical beliefs over the past year, we thought it would be prudent to recap on the broader topic of protected beliefs.
Beliefs, large and small, form a fundamental part of who we are. Every person's life is formed of an assortment of varying beliefs (or lack of), almost as unique as a fingerprint to each individual in the way that they differ, cross over and interact. The spectrum is vast – from football fanatics all the way to feminism and religious beliefs.
These common grounds of identity can become so embedded in our personality that when someone has a differing opinion or belief, if voiced in an inconsiderate way, it can cause harm and upset. For this reason, certain beliefs, in addition to religious beliefs, have been protected as ‘philosophical beliefs' under the Equality Act 2010.
It is important to understand that this protection does not necessarily restrict one's freedom of speech or liberty to hold an opinion, quite the contrary. It empowers individuals to hold differing opinions providing they are expressed in a considerate and respectful manner.
What is the test for a philosophical belief?
The criteria for whether something qualifies as a philosophical belief was first set out in the case of Grainger in 2009. In this case, the Employment Appeal Tribunal set out, five criteria that must be met for a belief to be protected:
- The belief must be genuinely held;
- It must be a belief, rather than an opinion or viewpoint based on the present state of information available;
- It must be belief as to a weighty and substantial aspect of human life and behaviour;
- It must attain a certain level of cogency, seriousness, cohesion and importance; and
- It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.
It is fair to say, that there are huge amounts to unpack within each of these criteria, and all are arguably subject to a high level of subjectivity particularly in relation to the fourth and fifth criteria as we have seen in the emerging case law over the last ten years.
What counts as a protected philosophical belief?
To understand the parameters as to whether a belief could be protected, it is helpful to review previous Employment Tribunal and Employment Appeal Tribunal decisions.
Ethical veganism (a form of veganism that goes beyond diet and includes lifestyle choices such as transportation and clothing) is one such belief that has been deemed protected under the Equality Act, as it holds the requisite level cogency, cohesion and importance to fulfil the tests as identified above. By contrast, vegetarianism is not considered a protected philosophical belief because it has been held to be a behaviour, rather than lifestyle choice. As people become vegetarians for many different reasons, the Employment Tribunal have held that it therefore lacks the necessary cogency, seriousness and cohesion, compared with ethical veganism.
The most widely contested area of philosophical beliefs in recent years has been to what extent gender-critical beliefs can be protected. Most notably, Ms Forstater's gender-critical belief that a person cannot change their biological sex amounted to a protected philosophical belief, as held by the Employment Appeal Tribunal.
This case received widespread controversy in relation to the fifth limb of the Grainger criteria which was whether her views were worthy of respect in a democratic society. Crucially, the EAT held that both Ms Forstater's and other opposing beliefs were “beliefs that are and must be tolerated in a pluralist society”. Ultimately, while her belief might be considered offensive to some, it is deemed not to seek to destroy any rights of another.
Looking to future development in this area, it is clear that although not every belief meets the criteria for protection, those meeting the Grainger criteria will inevitably adapt and develop in the years to come to cover the spectrum of popular movements and modern trends. Ultimately, this is a fluid area of law, and decisions will be made on a “case-by-case” basis.
What should employers be doing?
Obviously, there is a line to be drawn between protection of free speech and offending people within the workplace. In fact, the EAT's judgment in Forstater highlighted this fine line between holding a belief and knowingly expressing your belief in a way so as to cause provocation. Employers should therefore be aware of this distinction between the beliefs themselves and how these might manifest in behaviour, with the latter not necessarily being protected.
There is no doubt that this is a sensitive area of law and if handled incorrectly has the potential to lead to claims of discrimination, victimisation and harassment. To mitigate the risks of discrimination claims, employers need to have the right policies in place to be able to adapt to ongoing developments. Employers should ensure there are clear policies recognising cultural values, respecting different beliefs, as well as the use of social media.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.