Protecting beliefs is a ​​​​​​​delicate balancing act​​​​​​​

Religion or belief is a protected characteristic under the Equality Act 2010. This means someone who holds or manifests a belief which meets certain criteria is protected from discrimination and harassment in connection with that belief in, for example, their workplace. Cases involving beliefs meeting the necessary threshold have included beliefs, or a lack of belief, in gender ideology, anti-Zionism and national independence, to name but a few.

Importantly, for a belief to count under the 2010 Act, that must not be incompatible with human dignity or the rights of others. The case of Forstater v CDG Europe clarified that only a belief “akin to Nazism or totalitarianism” would fall at that hurdle. So, beliefs which are generally offensive, controversial or widely unpopular can still qualify for protection.

In this social media age, it’s increasingly common for people to express beliefs online. This, they would suggest, is a manifestation of their belief and an exercise of free speech. Indeed, Articles 9 and 10 of the European Convention on Human Rights enshrine rights to freedom of thought, conscience and religion and to freedom of expression. Nonetheless, opinions expressed online might be met with resistance from those with opposing views and could come to the attention of their employer.

On one hand, the employer will be mindful that what an individual does in their own time using a personal platform might largely be a matter for the individual alone. On the other hand, they might have concerns about how an employee’s online activities could impact the organisation, notably its reputation. Let’s assume the belief in question is a qualifying protected belief. An employee disciplined for simply holding the belief would have a valid discrimination claim. But what if it is the way the belief is manifested which is the subject of disciplinary action as opposed to the belief itself?

The case of Higgs v Farmor’s School clarified the law on this. Manifestation of a protected belief may be restricted in accordance with the law if the restriction is necessary in a democratic society, in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others. Similar restrictions apply to the right of freedom of expression. So, these are qualified, not absolute, rights. Restrictions can be imposed on those rights provided that is done proportionately. Employers must ask themselves whether their objective is sufficiently important to justify interference with an employee’s rights or whether a less intrusive measure might equally achieve it.

What is proportionate and objectively justified will depend significantly on the context, facts and circumstances of individual cases. Further clarification of the law in this area might have been achieved had the Higgs case proceeded to the Supreme Court but, earlier this year, permission to appeal there was refused. Employers are now left in the position of knowing that they may take proportionate action where objectively justified but without necessarily knowing exactly what that means in a particular case. Put short, the lesson is that all must tread carefully in this complex and delicate area.

Kirstie Carrick is a Senior Associate, Clyde & Co