Valerie Bond
Posted on 29 Sep 2020

Conflicting Protected Characteristics

A Christian teaching assistant who lost her job over an anti-LGBT Facebook post has taken her employer to the Employment Tribunal on the grounds that she was discriminated against on the basis of her Christian faith.

This article looks further into discrimination where protected characteristics can be found to conflict.

The Facts

A pastoral assistant at an Academy school shared a post on Facebook which petitioned against compulsory Relationships Education in primary schools. She also shared an article about the rise of transgender ideology in children's books which were being shared in American schools. Following an anonymous complaint, the school held a disciplinary investigation and found the assistant guilty of gross misconduct. This was due to the potential harm her post could cause to the Academy's reputation, and the fact that her acts could be viewed as discriminating against its LGBT pupils.

The assistant, however, has brought a claim in the Employment Tribunal ('ET') for unfair dismissal and discrimination. Her claim is being supported by the Christian Legal Centre and is being heard this week. Her lawyers will argue that her dismissal was a breach of her freedom of speech and freedom of religion.

Religion or Belief

Religion or belief is one of nine "protected characteristics" covered by the Equality Act 2010 ('EqA'). In recent times, there has been a flurry of cases which have decided whether legal protection can be given to a variety of alleged beliefs.

Earlier this year, the ET found that ethical veganism is protected as a philosophical belief in the case of Casamitjana v League Against Cruel Sports ET/3331129/2018.

Similarly, in Grainger plc and others v Nicholson UKEAT/0219/09, the Employment Appeal Tribunal ('EAT') found that a genuine belief in climate change could be considered a philosophical belief. The court provided guidance as to when a philosophical belief can be protected, in that the belief must:

  • Be genuinely held.
  • Be a belief and not an opinion or viewpoint based on the present state of information available.
  • Be a belief as to a weighty and substantial aspect of human life and behaviour.
  • Attain a certain level of cogency, seriousness, cohesion and importance.
  • Be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others

The aim is to ensure that philosophical beliefs share the same qualities, characteristics and weight as religious beliefs.

Religion vs other protected characteristics

Last year, the ET considered whether a Christian doctor's objection to transgenderism was capable of protection as a religious or philosophical belief in the case of Mackereth v The Department for Work and Pensions and another ET/1304602/18.

The Claimant was a doctor who was engaged to carry out health assessment for the Department for Work and Pensions.  The Respondent had a policy which required staff to refer to clients using their preferred names and pronouns. The Claimant argued that, as a result of his beliefs, he could not in conscience refer to individuals he was contracted to assess, who were contemplating, undergoing or had undergone gender reassignment, using the pronoun of that person's choice as the Respondent required.

The ET recognised that the doctor's religion of Christianity was a protected characteristic under the EqA. However, the ET held that his belief that God only created males and females and that a person cannot choose their gender, his lack of belief in transgenderism and his conscientious objection to transgenderism were views incompatible with human dignity, which conflicted with the fundamental rights of others and, thus, were not protected religious or philosophical beliefs.

Points to Consider

Employers should take into consideration the religion and beliefs of their employees and ensure that they are not inadvertently discriminating against them, such as by requiring them to wear a certain uniform. However, in a similar vein, if there are concerns that an employee's actions in relation to their religion or belief may be impacting on other employees, then this should addressed as soon as possible. Employers should ensure they have stringent policies in place so that employees are fully aware of what is expected of them during the course of work, as well as outside work such as on social media.

This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact Valerie Bond to discuss any issues you are facing.