Key takeaways

As the Supreme Court has refused permission to appeal, this means that the Court of Appeal's judgment (on which you can read more here) is good law. The decision confirmed the legal approach in this area, i.e. the fundamental nature of freedoms of religion, belief and expression, and imports a proportionality test into the Equality Act 2010. 

The Court of Appeal reached a more decisive outcome than the EAT: on the facts of this case, dismissal was disproportionate and therefore amounted to direct discrimination on the grounds of religion or belief. In the next section we provide more detail on the guidance provided by the Court of Appeal on managing conflicts of beliefs.

In more detail

Considering proportionality in conflict of belief cases

The Court of Appeal introduced a new proportionality test for direct discrimination when balancing rights of freedom of religion, belief and expression against the right not to be discriminated against because of a protected characteristic. Summarising and drawing together different parts of its judgment:

• Is there a sufficiently close and direct nexus between the act and the underlying belief such that it can be considered a manifestation of the belief? (This wasn't disputed in this case.)
• Is the manifestation something to which objection could justifiably be taken? 
• Even if yes, is the employer's reaction to the manifestation disproportionate?
• If it is not disproportionate, there is no direct discrimination. If it is, there is direct discrimination (i.e., the reason for the employer's actions will be treated as being the manifestation of the protected belief rather than rather than the distinct, objectionable manner of the manifestation).

There are a number of potentially relevant considerations in determining points 2 and 3: (a) the content, tone and extent of the manifestation; (b) the employee's understanding of the likely audience; (c) the extent and nature of the intrusion on the rights of others, and any consequential impact on the employer's ability to run its business; (d) whether the employee has made clear that the views expressed are personal, or whether they might be seen as representing the views of the employer, and whether that might present a reputational risk; (e) whether there is a potential power imbalance given the nature of the employee's position or role and that of those whose rights are intruded upon; (f) the nature of the employer's business, in particular where there is a potential impact on vulnerable service users or clients; (g) whether the limitation imposed is the least intrusive measure open to the employer.

Key principles for employers when dealing with conflicts of belief

Our view is that the key principles for employers when dealing with conflicts of beliefs are:

1. The importance of freedom of speech and expression.
2. There is no right not to be offended – action is only justified where the manifestation of the belief is objectionable, which is a high threshold.
3. Consider the context – determining whether something is objectionable, as well as the severity of any response (if any), will be context specific. 
4. Avoid a knee-jerk reaction to third party complaints. 
5. Do not make assumptions about an employee's views or what an individual might do – the fact they hold a particular belief does not indicate they would discriminate against or harass colleagues or customers/service users.
6. Ensure your policies are clear and employees are regularly given training that all beliefs are treated equally.
7. Leadership must be balanced and even-handed.
8. Where concerns arise as to reputational damage, disciplinary action and dismissal are unlikely to be justified without cogent evidence.

For more advice, including practical guidance for employers, on this important and nuanced area, please see our article here.