Under UK anti-discrimination law, there are three types of beliefs which are protected: religion, religious belief, and philosophical belief. Most recently the latter has been topic of conversation due to the Maya Forstater case, which highlighted the action deemed acceptable by a company against a philosophical belief. So, how has the Forstater case set the future landscape for businesses?
Maya Forstater case
The case revolves around Maya Forstater, a cis women (someone who still identifies with the gender culturally associated with her sex), who saw her contract not renewed by the company she worked for as a result of ‘controversial’ Twitter posts. The posts in question protested a government proposal which included language that allows trans people to live as their preferred gender, including self-identifying as the gender they believe is best for them.
As a result of this, Forstater made a claim to the employment tribunal under the grounds of unlawful dismissal on the basis of protected belief. She initially lost her employment tribunal due to the Equality Act 2010 which protects transgender people from being discriminated against for their gender identity.
An appeal was made and Forstater won with the Employment Appeal Tribunal finding that her beliefs in gender immutability are actually so deeply held, they’re akin to religious or deeply held philosophical beliefs. The tribunal accepted that some people may be offended by Ms Forstater’s views, but they were “straightforward statements of her [protected] gender critical belief”.
An in depth look into her Twitter timeline showed that her tweets were almost exclusively about transgender people and issues.
Difference between a philosophical belief and an opinion
To put this simply, a person’s right to protected and genuinely held philosophical beliefs (and expressing them) is protected by the Equality Act 2010, until it gets in the way of someone else’s rights.
A philosophical or religious belief will be protected if it:
- is genuinely held;
- is a belief, not an opinion or viewpoint based on the present state of information available;
- is about a weighty and substantial aspect of human life and behaviour;
- has a certain level of cogency, seriousness, cohesion, and importance; and
- is worthy of respect in a democratic society, is not incompatible with human dignity, and does not conflict with the fundamental rights of others.
What measures can employers take?
This case shines a light on the topic of ‘controversial statements’ made by employees and the actions an organisation can take against this.
Employers can take a number of measures in order to mitigate the risks of legal dispute including; ensuring that leadership and HR have a high-level understanding of the law in order to identify potential problem areas within policies, listen and react to staff concerns, and ensure the company’s position on certain matters are clearly communicated to staff clearly and sensitively.
An open-door policy is also important to ensure that issues can be discussed informally before they are escalated further.
And of course, organisations should be reviewing their policies on an ongoing basis to ensure they are up to date and are inclusive.
The topic of whether controversial statements made by employees are an opinion or philosophical belief can prove a potential challenge for an organisation.
As in the Forstater case, the company’s actions were deemed unlawful due to her strong and deep-rooted beliefs, and dealing with ‘controversial comments’ may not be as easy as first expected.
The team at hr inspire can support your business in any concerns it has over staff comments or reviewing internal policies. Get in touch with our expert team today for further guidance and information.