Protected beliefs in the workplace

In two recent decisions involving university academics, the employment tribunal has considered the question of whether the claimants were subject to unlawful discrimination on the grounds of their beliefs. These cases illustrate the difficulties for employers, particularly within the education sector, in balancing the rights to freedom of thought and expression whilst also protecting those with opposing views from suffering detriment. 

Phoenix v The Open University ET3322700/21

Professor Joanna Phoenix brought claims against her former employer, the Open University (OU), for direct discrimination, harassment, victimisation and constructive dismissal, relating to her gender critical beliefs. She believes that biological sex is real and immutable, and that sex should not be conflated with gender identity.

Professor Phoenix was a co-signatory on a letter published in the Sunday Times in 2019, which was critical of the Stonewall charity and its influence on UK universities. Following this, she claimed that colleagues subjected her to harassment and direct discrimination, including one who compared her to a “racist uncle”.

In 2021, Professor Phoenix established an academic research group along with two colleagues, with the aim of promoting gender-critical research. A large number of OU employees published a letter calling on the OU to withdraw support for the group on the basis it was hostile and harmful to the trans community. Professor Phoenix subsequently raised a grievance for bullying and harassment, claiming damage to her professional reputation and mental health. She had received death threats and began to suffer symptoms of PTSD and stress.

After resigning from the OU and bringing multiple claims against them, an employment tribunal held that Professor Phoenix was entitled to exercise her right to manifest her gender critical beliefs by setting up and participating in the research group. The publication of the letter by her OU colleagues, leading to a sustained and negative campaign against her, was found (along with several other instances) to amount to unlawful harassment on the grounds of her beliefs. The tribunal held that the university had failed to adequately protect Professor Phoenix from harm and had failed to produce an outcome for her grievance. Her claims for constructive unfair dismissal and victimisation were also upheld.

Miller v University of Bristol ET/1400780/2022

In this case, Professor Miller brought claims against the university for unfair dismissal and direct discrimination based on his anti-Zionist beliefs. The university had received numerous complaints, both from students and Jewish organisations, about the expression of Professor Miller’s views on Zionism.

An initial investigation into complaints relating to Professor Miller’s lectures had found that there was no case to answer, but following a subsequent speech and articles he wrote on the topic of Zionist influence within British universities, a further investigation was conducted. As a result of this investigation, he was summarily dismissed for gross misconduct. He was found to have breached the university’s conduct rules, acceptable behaviours policy and code of practice on freedom of speech.

The employment tribunal held that Professor Miller’s anti-Zionist belief amounted to a philosophical belief that was protected by the Equality Act 2010. It was satisfied that the actions that had resulted in Professor Miller’s dismissal – his lectures and articles – had a sufficiently close and direct nexus to his underlying beliefs, meaning that they were a manifestation of his belief. The tribunal found Professor Miller’s dismissal to be a disproportionate response to that manifestation, holding it to be directly discriminatory and unfair.

The university’s own investigations had found that what Professor Miller had said was not antisemitic, and it had not incited violence or posed any threat to anyone’s health and safety. The tribunal therefore held that the sanction of dismissal was outside the band of reasonable responses since his actions did not amount to gross misconduct, and the university had given inadequate consideration to the possibility of a sanction short of dismissal.  

The Birketts view

These cases illustrate the difficulties by many employers, particularly in academia, in balancing the rights of different minority groups whose beliefs conflict and, in many cases, directly oppose each other. In addition to protections offered by the Equality Act 2010, such cases also involve a consideration of rights under the European Convention on Human Rights (ECHR), in particular freedom of thought and religion (Article 9) and the freedom of expression (Article 10). These are qualified rights, meaning that lawful interference is permitted in some cases, but only if proportionate and necessary.

Previous case law has established that the threshold for establishing a ‘protected belief’ under the Equality Act 2010 is relatively low, provided it meets the criteria for a philosophical belief specified by the EAT in the case of Grainger plc and others v Nicholson [2010] IRLR 4. This includes a requirement that a belief is worthy of respect in a democratic society, not incompatible with human dignity and not in conflict with the fundamental rights of others.

In Forstater v CGD Europe and others, the EAT more recently held that all but the most extreme beliefs will be worthy of respect and that tribunals should focus on the question of whether there has been any discrimination, rather than whether a particular belief is protected.

In many cases, it is not the holding of the beliefs that is at issue but the manifestation of those beliefs in the workplace. In Higgs v Farmor’s School, concerning the dismissal of a Christian employee for expressing her beliefs on Facebook, the EAT recommended the approach for tribunals to follow in determining whether an employer’s actions were due to a manifestation of the employee’s belief, and therefore discriminatory. The EAT also set out some basic principles for tribunals when assessing the proportionality of any interference with Article 9 and Article 10 rights.

These latest employment tribunal decisions both highlight that individuals are entitled to manifest their beliefs, which can include expressing those beliefs, provided that in doing so they are not acting in such a way that it could be regarded as misconduct (for example, harassing those with other, equally protected, beliefs). Whether any interference with this right is justified will involve a tricky balancing exercise by employers. It will very much depend on the context and circumstances of each case, but employers should be cautious not to favour one side of the debate.

The present Government has significantly strengthened the duties of higher education institutions to protect freedom of speech by the introduction of the Higher Education (Freedom of Speech) Act 2023, which was granted Royal Assent on 11 May 2023. The majority of the Act’s provisions are not yet in force but are expected to be phased in from summer 2024, with new statutory duties to secure freedom of speech for universities and colleges and the launch of a new complaints scheme. It is a subject that will no doubt continue to dominate the headlines for the foreseeable future, regardless of the outcome of the forthcoming General Election.