As the lead for B Corp in our firm, I am acutely aware of how helpful it is to have colleagues around me who share my passions and values, particularly when it comes to the sustainable development goals and recognition of the climate emergency we are facing. These colleagues inspire me, challenge me and work tirelessly on those often ‘side of the desk’ projects that ensure that we as a firm make a real difference in what we do, while balancing people, planet and profit.
But in my day job as an employment lawyer, I also come across situations where people’s passions and beliefs clash, causing conflict and at worst, employment tribunal cases. This has increased over the years as statutory protection for employees and their beliefs have strengthened and as employees feel more entitled or comfortable to share their (sometimes strong) views with their colleagues. Perhaps this has also had something to do with Covid-19, where the lines between work and private life have become more blurred and Brexit, where the difference between colleague viewpoints became more marked. This can also be a particular issue for charities where staff are often very motivated and make personal sacrifices (such as taking a lower salary) to support causes they love.
So how do ethical and charitable employers balance these passions while maintaining their culture and respect for staff? How do you harness the passion without falling foul of the employment law pitfalls?
First, employers and HR Teams need to understand the legal basis for possible challenge by an employee. Under the Equality Act 2010, there is specific protection for job applicants or workers who have a qualifying religion or belief. Belief means any religious or philosophical belief or lack of belief. Focusing here specifically on beliefs, to qualify they must:
- Be genuinely held;
- Be a true belief, not simply an opinion or viewpoint based on the present state of information available;
- Be a belief as to a weighty and substantial aspect of human life and behaviour;
- Attain a certain level of cogency, seriousness, cohesion and importance; and
- Be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others. This means that if the belief encompasses an obligation to break the law it cannot qualify.
But, these beliefs do not need to be shared by others. It is possible for beliefs that are offensive or shocking or disturbing to others can still be protected.
Examples of beliefs that have qualified include Creationism, Darwinism, belief in the sanctity of life (extending to fervent anti-fox hunting and anti-hare coursing views), belief in Climate Change and Ethical Veganism (where a person who is a vegan chooses not to use or consume animal products of any kind). Recent cases have also looked at beliefs around sex and gender identity. Each case is fact specific as to whether the belief is sufficient to quality for protection. It is really important therefore for an employer to gently explore, listen and really understand the basis and extent of the person’s belief.
If a person has a qualifying belief, they are protected from direct discrimination, indirect discrimination, harassment and victimisation linked to that belief.
Employees also have the right to hold and express their beliefs under the European Convention on Human Rights.
Second, employers need a policy for preventing discrimination and training and support for managers in recognising issues and how to react if something arises – like where a derogatory comment is made about a worker’s religion or belief. Offering all staff a grounding in the issues and training on how to develop an understanding and tolerance for each other is hugely beneficial.
You are looking to instil a culture of dignity and respect: recognising that individuals may hold conflicting beliefs, but confirming that you still expect everyone to comply with certain baseline behaviours in the workplace.
It would be legitimate, for example, to have a policy prohibiting behaviour which could amount to unlawful harassment, even though the behaviour in question consists of the expression of a strongly held belief.
Third, be aware of the balancing act you are seeking to walk. You have to seek to ensure that the rights of individuals to hold and express certain views do not result in the discrimination or harassment of others, or the discrimination or harassment of the individual expressing their views where they amount to a protected belief. One belief cannot trump another. You must not be swayed by your own subjective beliefs or even those of your organisation. You need to look to foster an inclusive workplace, which means being inclusive to all workers.
This is a tricky area so get legal support – even the most well-intentioned employer can face disputes and a massive ripple effect within the staff group if they fail to balance competing rights and issues.
So should you ban outright all discussions of religion or belief at work? No, this doesn’t usually work. Rather it’s better to have some guidelines or restrictions, encouraging staff to be aware of the need for tolerance and awareness of how others around them are feeling. Senior colleagues need to be aware that it is not appropriate to force their personal views on others. All colleagues need to be aware of the dangers of stereotyping colleagues, of banter (which can be misunderstood) and of changing terminology which can cause offence.
Sometimes it can be simply a light touch comment that is needed from a manager to steer colleagues away from their passions becoming intrusive to others. Sometimes a more direct and private conversation is needed with the person to say “I know you feel passionate about that. How do you think others felt when you were discussing this?” And to remind them of the need for balance and empathy.
You may also want to consider carefully whether in your activities you are encouraging more debate around issues than are strictly needed. For example, a charity employer setting up an open forum and encouraging staff to air and share their views on all issues over a lunch break or arranging work events that always have a focus on one particular issue.
Fourth, if complaints are raised you must take this seriously and any action taken must be fair and sensitive, as well as in line with your internal policies. Avoid retaliating from a place of emotion. This is particularly important where there is pressure to act against employees holding certain beliefs, or to favour one belief over another.
Be careful also not to equate a worker’s beliefs with a risk they will discriminate against others without further evidence.
What about when colleagues express strong views on social media with which your organisation feels uncomfortable? Having a robust social media policy is also important, within which you should include examples of behaviour that would amount to misconduct such as making disparaging or defamatory statements about the employer, colleagues or clients. Ensure that the policy extends to professional networking sites such as LinkedIn, as inappropriate use could be linked back to your organisation. You may find staff still post strong views with which you feel uncomfortable. One way to combat this is asking employees to add disclaimers before posting that the views expressed are their own. In some circumstances it can be reasonable to expect employees not to express such views on social media: but a very careful balancing exercise should be done and recorded in writing before such policies are introduced, to seek to ensure that human rights are being respected.
If you would like to discuss workplace policies surrounding expressing beliefs at work, how our Employment Law team could provide training to your staff on topics such as equality, diversity and inclusion or need support in managing an issue of this kind, please do get in touch.