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Does your equal opportunities policy ensure equality?

February 16, 2024

Quiz time!!!

Q1. Which novel features the following quote: “All animals are equal, but some animals are more equal than others”?

Q2. What has this got to do with equal opportunities policies?

The answer to question 1 is “Animal Farm” by George Orwell.

The answer to question 2 is a bit more involved and requires us to look at some recent decisions by the tribunals and courts.

The first of these decisions was a well-publicised case from 2021. In Forstater v CGD Europe Ltd, the Employment Appeal Tribunal confirmed that gender critical beliefs could amount to a protected philosophical belief under the Equality Act. This judgment meant that where an employee or worker was subjected to less favourable treatment or harassed as a result of having that belief, they would be protected by discrimination legislation.

A less widely reported aspect of this case was in regard to how a philosophical belief that may be offensive to some or in conflict with another protected characteristic ought to be addressed in workplace situations. The EAT stated that the Equality Act offers protection to those who manifest a philosophical belief (rather than simply hold that belief) and unless they manifest that view in an objectionable way, then it can be direct discrimination to subject that employee to unfavourable treatment because of their manifestation of that belief.

This followed guidance issued by the Court of Appeal in an earlier case, Page v NHS Trust Development Trust [2021] EWCA Civ 255, where it was held that employers ought to be making a distinction between:

  • Cases where the reason for the unfavourable treatment by the employer is the fact that the worker holds and/or manifests a protected belief. This would amount to direct discrimination because of belief.
  • Cases where the reason for the treatment is that the claimant had manifested that belief in some particular way to which objection could justifiably be taken. In these cases, it is the objectionable manifestation of the belief, and not the belief itself, which is treated as the reason for the act complained of. However, if the consequences of the objectionable manifestation are not such as to justify the action taken against the employee, this cannot sensibly be treated as separate from an objection to the belief itself.

Just last week, another case was reported in the media where an academic at the University of Bristol, Professor David Miller, was found to have been discriminated against following his dismissal for holding anti-Zionist views. The tribunal accepted this was a philosophical belief worthy of protection, despite the individual’s views being offensive to others.

It is clear that these types of situations where there is what has traditionally been referred to as a “clash of rights” are only going to be more common.

Which takes us back to George Orwell and question 2 of the quiz (you hadn’t forgotten, surely!!!). Commonly, equal opportunities policies set out groups or attributes which are to be protected by reference the nine listed protected characteristics in the Equality Act. The terms of these policies will normally state that where any individual behaves in a way which is unfavourable or offensive to someone because they have that protected characteristic, then that will be a breach of the policy and will lead to disciplinary action being taken against the alleged wrongdoer. So, if you happen to be relying on the protections of the Act on the basis of a recognised protected characteristic, you would be “more equal than others”.

The cases referred to above (and others) show that employers need to rethink how the terms of their equal opportunities polices are drafted and, perhaps more importantly, applied. When these particular situations were being managed, both Ms Forstater and Prof. Miller were treated less equally by their employers because they did not hold beliefs that fell within the fixed parameters of the Equality Act. When they brought their cases, the tribunals confirmed that this was not fair and they had been treated less equally than others.

This is an area where employers need to be proactive in both updating the terms of their policies and in providing training to their managers and staff to ensure there is an awareness of the legal risks that can arise where less established and what may be considered more controversial views are manifested within the workplace.

To some this may seem like the law is developing in a way which goes beyond what is reasonable and we are now entering a “1984” type world of Big Brother, Newspeak or doublethink. That, however, will need to wait for another time and another quiz.

The opinions expressed in this site are of the author(s) only and do not necessarily represent the opinions of Blackadders LLP.

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