Managing conflicting beliefs

Higher Education Institutions (HEIs) often find themselves having to strike a balance between the competing beliefs of their employees.  This is not always straightforward.  When does the manifestation of a belief amount to harassment?  How far should HEIs tolerate negative views about the protected characteristics of others?  Add to this, questions of freedom of speech and it is not surprising that this is an area generating high profile disputes in the employment tribunal. 

In our talk at this year's UHR Conference, the team from VWV will be addressing these difficult areas, running through some case studies and taking a look at what the future might hold.  We are hoping that many of you will be able to join us and take part in the discussion.  This blog takes a high-level look at some of the areas we will be covering.

Over the last 10 - 15 years cases around managing conflicting beliefs have covered:

• Dress codes and the wearing of religious symbols
• Individual employees promoting their beliefs at work
• Tolerating beliefs that are seen as objectionable
• Potential damage to an employer's reputation, and
• Stereotyping of particular beliefs

In the HE sector there has been a particular focus on the extent to which unpopular beliefs should be tolerated.  This has come up in relation to a number of areas, most recently in the clash between those holding gender critical views and those who disagree with them. 

What are the key points the cases tell us?

• An individual has a right to manifest their belief, even where the belief is unpopular or causes offence.
• However, this right is not absolute and may be restricted to protect the rights and freedoms of others.
• Where an employer limits an individual's manifestation of their beliefs, it must do so in a proportionate and objectively justified way.
• What is proportionate and justified will always be context specific.

Determining a proportionate and justified response will not always be easy.  HEIs face a number of competing pressures.  Some key pitfalls to look out for include:

• What is the reason for action against a particular employee? Is it because of their beliefs (or the way they manifest those beliefs) or is it because of some other reason.  In the case of Omooba v Michael Garrett Associates, an actor's contract was terminated because of commercial pressures faced by the employer, not the actor's beliefs or the way she manifested them. 
• What has the employee actually done? In Higgs v Farmor's School the employer was found to have taken into account complaints which stereotyped Mrs Higg's views, rather than looking at what she had actually said and what message her words conveyed. 
• Is reputational damage relevant? The answer to this is "possibly", but great care must be taken if the employer is relying on potential, rather than actual, reputational damage.  In Higgs the court identified three areas for consideration in reputational damage cases:
  • Did the employees' comments have anything to do with the employer's business?
  • Was it clear the employee was expressing personal views?
  • How did the employee express their views? Could it reasonably be seen as objectionable? 
• Is dismissal the right option? In cases involving anti-Zionist beliefs and gender critical beliefs, the courts have found that, on the particular facts of those cases, actions short of dismissal would have been proportionate.
• Has the employer done enough to protect employees with unpopular (but protected) beliefs?

These are difficult and controversial questions that HEIs are facing more and more regularly.  Join us for our talk at 1:15pm on Tuesday 12 May for a more detailed discussion and to take part in the conversation. 

VWV

Michael Halsey, Partner

mhalsey@vwv.co.uk