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Philosophical beliefs - navigating and understanding individuality
Back in July 2022, we covered the landmark Employment Appeal Tribunal judgment regarding the case of Maya Forstater, which broadened the scope of what is known as Grainger 5, determining whether a philosophical belief is “worthy of respect in a democratic society”.
Since then, another case, that of Dr David Mackereth v The Department of Work and Pensions (1) Advanced Personnel Management Group (UK) Limited (2): [2022] EAT 99, which, on a superficial level, covered the same ground as Forstater, has reinforced the conclusion that key to any consideration of dismissal due to philosophical beliefs is more the manner in which those beliefs are expressed than the specific nature of them. Forstater expressed her views on her own personal Twitter account rather than directly to her colleagues, and those views were expressed in a way that the judge did not deem offensive.
The case of Dr Mackereth was very different. He worked as an assessor on behalf of the DWP, assessing members of the public who had applied for Health and Disability related benefits. During this process, he had openly refused to call the applicants by their preferred gender pronoun if it was different from the one which they had been assigned at birth. Despite his actions being rooted in his religious belief, and the EAT ruling that it ticked the same five boxes as Forstater’s philosophical beliefs, the contrast is that his actions were found to be openly offensive towards the people who he was assessing. They were potentially vulnerable service users and he had chosen to purposefully manifest his beliefs in that way, in that setting, by openly voicing his opinions rather than going about things in a more circumspect way – perhaps by asking that he should not be assigned to cases where he would be dealing with transgender applicants.
What can employers learn from this?
The Mackereth ruling reinforces the importance for employers of training their staff to respect each other’s views and opinions, promoting diversity in the workplace, and ensuring these measures are reflected in their practices and policies.
It’s important to remember that controversial views will often be held by individuals in a free society but there remain significant restrictions on bringing them into a workplace where they would create an offensive environment for other workers or service users.
It is therefore equally as important that employers adopt a pragmatic approach to their practices and policies in light of the risk of challenge, which seems to have increased noticeably in the past few years.
Unlike disability discrimination, the Equality Act does not impose a ‘reasonable adjustments’ obligation on employers to accommodate philosophical or religious beliefs. However, both the Equality and Human Rights Commission’s Employment Statutory Code of Practice (the Code) and the way in which indirect discrimination operates - which is to seek to balance the effect on individuals against the employer’s requirements - suggest that employers should be supportive and find solutions where possible and available.
Employees may raise issues and concerns in the workplace on a variety of different topics, be that in social discussions or on work-related matters. As a result, we recommend you pay particular attention to philosophical beliefs and their possible effects when considering these key areas:
Conduct
An organisation where a person’s philosophical belief and its manifestation are discouraged entirely would be an oppressive place to work, and would fly in the face of encouraging employees to bring their “authentic self” to the workplace. Policing such a policy would invite trouble as it could result in the risk of unlawful discrimination claims. People should not be harassed or embarrassed because of their views.
Conversely, employees should not harass others who do not adhere to the same beliefs. However, a line needs to be drawn between discussion of a matter or topic between colleagues and harassment due to a difference of beliefs, and a robust harassment policy should set that out.
Having an up-to-date policy covering diversity, equality and inclusivity in the workplace is key to handling such issues as well as a good social media policy which also refers to the views/personal opinions of employees on their personal profiles – especially where they list who their employer is (not always an advisable course of action!).
Food
It is an easy point to innocently overlook but the Code suggests that employers should supply a separate fridge shelf to address dietary requirements relating to religious or philosophical beliefs: for example, an orthodox Jewish worker’s religious belief that their food should not come into contact with pork products. It could be advisable to make the same accommodation for a vegan person as this case references: Mr J Casamitjana Costa v The League Against Cruel Sports: 3331129/2018, also covered in our blog post;
https://www.rradar.com/post/implications-of-the-ethical-veganism-tribunal-judgment
Employers that provide catering to their staff should also be aware of vegan options and offer them if needed.
Workwear
Uniform may be required, either due to uniformity and presentation or for health and safety reasons. This may include hats, footwear or clothes of a particular material.
Requiring an employee to wear a uniform made of animal product like leather may amount to indirect discrimination, particularly if their religion or philosophical belief prohibits this.
As a quick reminder, any dress code imposed should be justifiable as a proportionate means of achieving a legitimate aim.
Travel
Ever since the pandemic and a move to a more flexible way of working for some industries, travel is a hot topic.
Although resistance to a commute for purely financial reasons is what you are more likely to have to face, beliefs about the need to reduce travel or the use of certain forms of transport may arise, including modes of transport that are more likely to injure animals or harm the planet.
Again, this might have organically happened for a lot of you due to welcoming hybrid working models- so rather than requiring attendance at meetings or conferences in person, an employer may be asked to offer remote attendance or to critically assess what travel is essential. You may see this being raised in statutory flexible working requests and it’s a point to be aware of even if the employee hasn’t expressly drawn your attention to it.
Benefits and Perks
Sourcing who your organisation works with or stakeholders with whom you are aligned may come under scrutiny. For example, the choice of funds in a pension investment even though through a 3rd party may be subject to challenge. You may want to consider more ethical sources or those which are aligned with that as their core business philosophy.
Equality and diversity are not just buzzwords that employers can put on their website to gain kudos and then forget about when carrying their daily business. Businesses are made up of people, all with their individual natures and the best businesses operate from a base of co-operation engendered by tolerance, forbearance and understanding. It’s in the interests of all employers to ensure that they have an environment in which people feel free to express themselves but are also protected from deliberate attempts to harass or discriminate. That balancing act is hard to achieve, but if it can be done, the results will pay dividends.
As we mentioned at the start of this article, the Forstater case redefined Granger 5, and thereby opened up the concept of philosophical belief, leading to further claims in its wake. Employers need to make sure they are up to date with where the law stands on this most delicate of issues, and it’s a very good idea to get expert employment law advice before taking any action, and well before a matter becomes a tribunal claim.
