Podcast: Navigating conflicts of belief in the workplace

Introduction

Robert Shore: Hello, and welcome to the XpertHR podcast. XpertHR is a comprehensive source of leading practice, employment law and benchmarking information for HR professionals, providing solutions and expertise for every HR role, challenge and opportunity. You can find us any time of the day or night at www.xperthr.co.uk.

My name is Robert Shore, and I’m delighted to be joined today by employment law specialist Darren Newman. Darren, welcome. [0:00:30.5]

Darren Newman: Hi Robert. Thanks for having me.

Legal risks of conflicts of belief

Robert Shore: And we’re going to be talking about conflicts of belief. That could be around issues of gender and sexuality, politics on the international stage and also domestically. And of course we’re due a general election in the UK so we can expect some differences of opinion there.

Understandably, lots of employers worry about the impact of controversial beliefs being expressed in the workplace, perhaps because of the effect on other employees, perhaps just because of the distraction that disputes can cause. So what we’re asking today is, ‘What is the legal framework?’

Right, so Darren, let’s get started with a question for you. So employers might be concerned about discussions taking place at work over, let’s say, the issue of Gaza or Ukraine. How can employers navigate that and what are the legal risks? [0:01:22.7]

Darren Newman: Well, it’s an interesting time at the moment in employment law because this is an issue that we are seeing popping up in tribunals left, right and centre. And the legal framework is evolving, which makes it very exciting for employment lawyers and very difficult and frustrating for employers, I think, because it means that we’re trying to get to grips with how this works.

And on the one hand, I mean, there are some things that are straightforward, right? So when you’re thinking about the legal framework on stuff like this you always start with the contract of employment. Under a contract of employment an employer has a reasonable degree of control over how employees behave. So they can have rules about what kind of behaviour they expect in the workplace, and they can take disciplinary action if people don’t meet those rules. So you could try and govern the way in which these sort of things were navigated at work. That’s relatively straightforward.

What’s difficult is that increasingly these issues are being fought under the Equality Act; they become discrimination claims. And specifically discrimination where the protected characteristic that’s being [unclear – 0:02:39.8] is religional belief. And religional belief means any religious belief but also any philosophical belief.

And so what we’ve seen over recent years is a real development of how religion and belief cases are being dealt with in the tribunals. And there’s two sort of parallel tracks where this has been going down.

First of all is the scope of that – what kinds of belief are going to be protected? And we have the case of Forstater and CGD Europe, which was looking at the issue of gender-critical beliefs and the concept in the context of the trans rights debate. And that held that even beliefs that are regarded as offensive are still going to be protected potentially as philosophical beliefs under the Equality Act. In fact, they went much further than looking specifically at Forstater’s beliefs, and they said that really it needs to be a very extreme belief in order to be excluded from the scope because it’s not worthy of respect in a democratic society, which is a phrase we might come back to.

So her belief would be that sex is immutable and binary and biological, and that gender identity is not as important as biological sex and that sometimes it’s important to assert biological sex as opposed to what someone might describe as their gender identity. And I’m not justice to either side of the debate in summarising it that way, so nobody quote me! But that’s the sort of issue that is being looked at.

But in deciding that that was a protected philosophical belief, the Employment Appeal Tribunal went so far as to say that basically the only beliefs we’re going to exclude because they’re too offensive are beliefs that are basically totalitarian, that are essentially akin to being a Nazi, right? Now generally speaking, you’re on very sticky ground when you start comparing things to the Nazis, but that’s literally what the Employment Appeal Tribunal did in this case. No suggestion that Forstater’s beliefs were anywhere near the threshold, but the threshold was described as being quite an extreme one.

So potentially that means that lots of beliefs that employers are likely to be uncomfortable about, and might well conflict with the employer’s own values, are going to be protected. And then what we’ve got to look at, well given that they’re protected, what’s going to amount to discrimination? To what extent is somebody trying to control how people behave in the workplace in the way that’s related to that belief, to what extent is that going to be discrimination?

And that’s where we’ve got the second parallel, which is essentially taking on board in discrimination law human rights law. And in particular, Article 9 of the European Convention on Human Rights, which protects religion and belief, and in particular protects the manifestation of a religious belief. So it says it’s not enough to just protect you for having a belief, ‘cause what’s the point of having a belief, if you can’t express it, so we must also protect your right to manifest that belief, which for our purposes might involve expressing your opinion or behaving in a way that’s consistent with your belief.

And the way we’ve looked at discrimination law, and we’ve seen this increasingly, and there’s a case called Page, which was decided in the Court of Appeal, and that’s been picked up in the Forstater case and it’s now been picked up as well in a case called Higgs against Farmer’s School, which is about someone’s behaviour on Facebook (and I’m sure that’s an issue that we’ll come back to), the fact that someone has expressed a belief in a particular way is treated as being indistinguishable from holding the belief itself. So if I dismiss you for expressing the belief, that’s the same as dismissing you for holding the belief. It becomes direct discrimination. And direct discrimination doesn’t have a justification defence.

So if I’ve treated you unfavourably because you’ve manifested your belief, I’ve treated you less favourably because you’ve got a belief and I don’t get to argue that what I did was reasonable. And that creates a real potential problem for employers in knowing to what extent you can take action against someone because of the way in which they’ve behaved.

Case law addressing conflicts of belief

Robert Shore: So has a court ever decided that an employee has manifested their belief in a way that is not acceptable [0:07:15.6]

Darren Newman: Yeah, I think they might have done that this morning, actually, as we record that podcast! There’s a case I still haven’t quite read the full text of yet! It’s really about trying to distinguish between, ‘Are you dismissing somebody because of their belief or because of the unreasonable manifestation of it?’ And they do draw a line between manifesting your belief in a way to which objection cannot reasonable be taken, and manifesting your belief in a way to which objection can reasonably be taken. And in the Higgs case, the EAT were saying that the line is somewhere around where it’s necessary to protect the rights of others. So what we’re going to probably be focusing on in future cases is, ‘Well, is the way in which someone’s expressed their opinion in the workplace or, you know, outside the workplace, is the way in which they’ve manifested their belief harming other people?’ If it’s harming other people then that’s something we can say, ‘Well we can object to that then, and therefore if we treat you less favourably because you’re harming other people that’s not going to be discrimination.’

The Higgs case

Robert Shore: So in the case of Higgs, let’s just fill in a couple of sort of facts here because it’s a Facebook case, as you say. [0:08:27.8]

Darren Newman: Yeah. It’s one of our Facebook cases. There’s an increasing file full of them.

Robert Shore: What happened there? [0:08:35.3]

Darren Newman: Yeah. So in Higgs, we have someone who is a…I think her job title was something like ‘pastoral care manager’ in a state secondary school, an academy. And she had a religious belief around issues to do with samesex relationship, same-sex marriage and trans rights. And she’d expressed those beliefs and had particular concerns about sex and relationship education, particularly about primary school children. And she’d expressed those beliefs on her Facebook page. So she’d made some Facebook posts, she’d cut and pasted some stuff from some American campaign sites, and her Facebook page makes no reference to her employer at all. There was no link between what she was saying and the work. There was no suggestion at any stage that she’d performed her work in a way to which anyone would object.

But a parent who saw her Facebook posts complained to the school, and she was ultimately dismissed, the employer said, because they were worried that other parents might think she was homophobic or transphobic. And the EAT said, ‘Well, first of all that’s not a great distinction because you’re sort of saying that you’re dismissing her because you’re worried that other people will think she’s got a belief that in fact you’re saying she doesn’t have.’ ‘Cause it was accepted that she wasn’t herself homophobic or transphobic. But in particular, the EAT said, ‘You’ve got to accept that…or you’ve got to consider whether what she was saying was a manifestation of her belief – and it clearly was – and then you’ve got to do a balancing act,’ says the EAT. ‘You’ve got to look at…if we’re going to interfere with that manifestation, if we’re going to say to her, “Well actually, in order to work for us you can’t say things like that on Facebook,” that’s going to be an interference in her right to manifest her belief. If we’re going to justify that, we need strong grounds to justify it because that’s a fundamental right to manifest your beliefs. So we need to have really strong grounds to show that our interference is within the scope of our policies and is protecting a genuine interest that we’ve got,’ that it’s an appropriate, balanced and proportionate way of protecting other people is essentially what the EAT was looking at.

And so what you’d look at is you’d say, ‘Well you know, to what extent do these Facebook posts indicate that the way in which she treated students at the school might be a problem?’ And on the facts of the tribunal case I think there’s no grounds for finding that it would have been a problem at all, and I suspect that her case, when eventually it gets resolved (I believe it’s on its way to the Court of Appeal), when eventually it gets resolved, if the EAT is right in its analysis I’d say she’s probably going to win it.

Robert Shore: Yeah. And of course here these are views, then, that are not expressed in the workplace at all. They’re expressed on Facebook and, as you say, with no link to the employer. So that’s quite interesting. We’ll circle back to that.

So first of all I need to ask you then, is there a free speech issue here? ‘Cause you were saying, you know, so somebody’s in employment, they have a philosophical belief that is protected. Are they free to speak, then? [0:11:53.4]

Darren Newman: I mean, there is a free speech issue. If we were looking purely at free speech we’d be looking at Article 10 of the European Convention on Human Rights. That has a similar sort of caveat to it that you can interfere with someone’s speech, just as you can interfere with their expression of manifestation of a belief if it’s necessary to protect the rights and freedoms of others, which is what was being relied on in Higgs.

I think generally speaking in this context, the courts tend to think that Article 9 is the right place to be looking, rather than Article 10, and they’re essentially doing the same job. Free speech is an odd thing when it comes to employment, of course, because you know, employees don’t necessarily have free speech in the way in which they’re doing their job because they’ve got a contract of employment that tells them to do what the employer tells them to do. And that might well involve limiting what they can say. You know, there’s nothing inherently wrong with having a job where the job says, ‘Well, these are the sort of things we need you to say in your job, right? And if you have a fundamental problem with that then perhaps another job might be the solution.’

It becomes difficult when it’s speech outside the workplace but I think again a tribunal would probably say, ‘Well, since it’s free speech about a belief, Article 9 is the right place to look.’ I’m not sure it makes a fundamental difference which article they stress.

Robert Shore: So social media. Can we distinguish between what is said in the workplace and what is said elsewhere And social media is very good for this. And obviously social media is again where a lot of these cases do pivot on things that are said. [0:13:31.4]

Darren Newman: Yes. Absolutely. I mean, there’s a real trend now that you can spot where people say something on social media – it seems to be Facebook, the cases are very Facebook-heavy – and the employer becomes aware of it because someone has reported what someone else has said on Facebook. So it’s not just that the debate on Facebook has become a thing. It’s dobbing someone in for what they’ve seen on their Facebook page has become a real thing, sometimes from people who are colleagues and ‘Facebook friends’ (which is very much in air quotes in that context!), sometimes just members of the public, who have seen a social media post, figured out who the employer is, and they’re contacting the employer saying, ‘Do you realise what objectionable things your employee is saying?’ We’re seeing that increasingly happening as well.

I think the key thing we’ve always said about social media, and to an extent it covers any behaviour outside the workplace, which is the employer can have a legitimate interest in that if they can show why they have a legitimate interest in that. Why is it that the employer cares what somebody says on Facebook? What is the employer’s legitimate interest? Does it indicate something about how they’re going to perform their job? Or does it associate the employer with what is being said in a way that perhaps brings the employer into disrepute? I’m sometimes a bit skeptical about that. I think sometimes employers find it too easy to reach for that, rather than think about, you know, ‘Do we really have an interest in what this person is saying on Facebook?’ But it is increasingly something that we’re seeing. But it’s for the employer to make that link. It’s for the employer to say, ‘I know they’ve said this on Facebook. They haven’t said this in work. But this is why it’s our concern. This is why it’s something that we need to look at.’

Can employers regulate speech?

Robert Shore: Yeah. So to be thoroughly practical about this, can employers put rules in place governing how people talk about or address certain issues and where they talk about them and how far that extends beyond the workplace? You know, what can employers do? [0:15:40.8]

Darren Newman: Well, they can certainly have rules and I’m generally a skeptic about telling employers that the solution to every problem is to have a policy about it. But it is important in this sort of case to try and have an agreed set of rules about what’s appropriate and what isn’t, and you’re in a stronger position with a tribunal if you can say, ‘Well yes, we’ve interfered with somebody saying something in the workplace but we’ve done that in accordance with this policy. We’ve got a policy that says, “You’re obviously free to believe whatever you like, and you can express that belief, but we want you to be careful about the context in which you choose to do that, how you treat colleagues, and it should always be done in a way that makes sure that colleagues are treated with respect and that doesn’t fall into harassing other people because of their protected characteristics.”’

So you can have a sort of policy that looks at the way in which you’re going to express yourself and the way in which you’re going to go about this, and that can be really helpful. What you have to be careful of is that you don’t have a policy that takes sides in the debate. So if there is a sort of division between, you know, whether it’s an international issue like Gaza or whether it’s an issue like trans rights and gender-critical beliefs, you don’t take a stand that says, ‘Well we’re on Side A and so the people on Side B should be very careful about how they express themselves.’ It’s important that the policy is evenhanded and respects the fact that people on both sides of that debate have rights.

Regulating political speech

Robert Shore: We’ll return to some of those particular areas that you talk about, but actually given that obviously we are expecting a general election at some point here, how about political…just ordinary sort of party affiliation in the UK? And not at all sort of taking the more extremes of the spectrum. What are one’s rights to express that at work [0:17:44.0]

Darren Newman: Well, that’s interesting, actually, ‘cause what we then have to distinguish between is a belief that is protected because it’s a philosophical belief and an opinion about a political party, or even a belief in a political party that might be a political belief and isn’t therefore covered.

Now, Northern Ireland has separate rules on this. So Northern Ireland has always had…well, not always but certainly has separate rules on political belief discrimination that obviously come from its now particular context. But talking about Great Britain, we generally haven’t done that, right? And it’s generally been taken that a political belief is not going to be protected under the Equality Act as a philosophical belief because the idea of the philosophical belief is that it’s more akin to a religious belief than a political belief.

But it is perfectly possible. The criteria we use, incidentally, are called the Grainger Criteria, which come from a case called Grainger, as it happens, Grainger against Nicholson. And the EAT looking at caselaw from the European Court of Human Rights, and also UK cases interpreting that, came up with five criteria to decide whether a belief is protected or not. One that it must be genuinely held is straightforward. One, however, is that it must be a belief and not merely an opinion or viewpoint based on the current state of information available. So for instance, I might watch the news and I might have a view about NHS funding and what needs to happen to NHS funding. That’s not going to be a philosophical belief because that’s just a thing that I reckon having seen the news. I might, however, have a longstanding and deep seated commitment to a particular view of NHS funding, and I might link that to an overall life stance about how society should be governed and how things should operate. And in those circumstances maybe that would edge towards the idea of being a philosophical belief, right? So I might have quite a socialist view of things that might be a philosophical belief. Or I might have a libertarian, free market view about how society should be organised, and maybe that would tip over into being a philosophical belief.

It needs to be something that’s weighty and substantial, is the third Grainger criteria, and have a certain level of cogency, coherence and importance, which is the fourth. So it can’t just be an opinion that you disagree over. It’s got to be linked to something deeper in you that is about how you view the world. But you can easily see how some of the issues that we might be arguing about in a general election will, for some people, link in that way.

The Miller case

Robert Shore: Yeah. And actually, there’s a case recently, Miller and protection of anti-Zionist views, which hinged partly on that issue of… [0:20:45.8]

Darren Newman: It does. It was interesting. Miller is the case of an academic who was dismissed because of lectures that he gave and speech that he gave where he takes a particular view of Zionism and the establishment of Israel as a country and what he thinks about that (which again I’m not going to attempt to characterise because he’s an academic who’s studied it for many years and he’s got a very sort of detailed view about that). But he essentially regards Israel as an inherently racist organisation because of his view of the nature of Zionism. And that’s obviously controversial, right? Lots of people disagree about that.

In the case, it was accepted by the employer that his views weren’t antisemitic, that he was thinking about Zionism rather than using that as a proxy for antisemitism. But it was held that that was a philosophical belief rather than just a political belief. And it was interesting that the tribunal’s reasoning on that – and it’s a very long decision; it goes on for more than 100 pages – but the tribunal’s reasoning on that seemed to focus on how completely un-shiftable he was in that opinion, that he held that opinion so very, very strongly that he simply wasn’t open to any further evidence on it, he wasn’t open to any discussion on it, he would always believe this ‘cause it went to the essence of what he thinks about the world. That’s the kind of thing that makes it a philosophical belief. Almost the more irrational you are in your belief, the more protected it is, whereas if you think you believe what you believe just ‘cause there’s really good evidence that supports you, that actually suggests that what you’ve got is an opinion rather than a belief. It’s quite a paradoxical situation, really.

Taking a position as an employer

Robert Shore: Obviously a lot of employers…it’s become increasingly the thing that employers themselves sign up to various kinds of campaigns and, you know, and are often under pressure to express positions in support of, you know, lots of different social issues. Do they put themselves at risk by actually tying themselves to any kind of view? [0:22:47.0]

Darren Newman: I think probably not. We don’t have proper cases on this yet but you know, there are organisations that are what I call ‘values-led’, right? There are organisations that will take a strong stance on particular issues, and I think they must be entitled to do that. So if a local authority, for example, wants to take a strong stand on supporting Pride Month, I think it’s entitled to do that. But it does need to be careful about how it then treats people who are uncomfortable with that. So you may have a belief that is contrary to the position that you would take in relation to Pride, and that belief not necessarily but might be religious or philosophical belief. Remember, we’re not just going to protect people for being homophobic. It needs to be linked to a belief system that we can call either religious or philosophical. So it needs to be a bit more cogent than just hostility. But it’s perfectly possible that somebody would have a religious view, for example, that is inconsistent with the values that Pride puts forward. If you’ve got an employee in that situation, you need to find a way of doing what you do in relation to Pride, for example, but not doing that in a way that makes that employee have to go along with something that they’re uncomfortable with.

So issues like email signatures and what goes on the bottom of an email signature. It’s one thing to have, you know, members of staff being able to adopt an email signature that signals support for Pride, for example, and has various logos or links in the email signature. I’d be really concerned if people were pressured to do that or if people were treated less favourably as a result of not doing that. So if you’ve got an employee who doesn’t seem to be joining in with the branding that goes with that, the employer needs to be careful to make sure not only that they themselves don’t take action against that employee but that other employees don’t as well. ‘Cause what we’ve seen in a lot of these cases is it’s not so much the employer taking disciplinary action, it’s other employees objecting to the opinion that’s been expressed by the employee, and doing that in a way that amounts to harassment. So the employee wins a harassment complaint because other employees are shunning them or criticizing them or, you know, finding ways to express their disapproval in a way that amounts to unwanted conduct related to the protected characteristic which violates their dignity or creates an offensive working environment for them. So you’ve got to be careful to make sure that harassment doesn’t take place.

So that also comes out of things like…we need to see a case on the use of pronouns because the extent to which an employer can require an employee to use someone’s chosen pronouns is not clearly set out in the caselaw yet. And I can think of different scenarios that might go in different directions and we need to see the cases basically try and sort that out.

Robert Shore: And again, where you were talking about things turning into harassment, I just wanted to circle back to Miller briefly, because although obviously there was something that was established in that case about anti-Zionism as a protected belief, Miller didn’t exactly win on all points. [0:26:29.3]

Darren Newman: Yeah. I mean, he won on enough! I think it’s always the case with some of these complicated discrimination cases that there are 30 allegations and really there are some that are at the core of what you’re saying and some that are more at the fringe of what you’re saying but it all goes on the same form. So you know, you have a detailed claim to try and capture as much as you can.

It was found that his dismissal was because of his beliefs, or certainly the way in which he expressed them in a way to which objection could not reasonably be taken. So that’s pretty good.

It was also found that, you know, he was subjected to various forms of…I think it’s right that they found that there were various forms of harassment.

But not everything that happened to him was discriminatory. But the employer needed…and again, I don’t know whether Miller will go on to appeal and, you know, it’s a 100-page judgement and the facts are even more complicated, so I don’t want to pronounce a view on it. But you know, there was an issue about the way in which he dealt with students that was a genuine concern that the employer had. But what they didn’t do was think about whether there was some other way that they could address that, rather than going straight to dismissal. And the tribunal found that dismissal was a disproportionate penalty, bearing in mind the genuine concerns that the employer had.

Robert Shore: Yeah. So again, the important thing there for employers is always to have a good process in place and that you stick to the principles whereby you investigate people’s behaviour at work. [0:27:51.1]

Darren Newman: Yes. And you also need to be careful that the investigation is properly focused on things that are within the employer’s purview, that are about the way in which someone has behaved and about protecting other people, rather than investigating what somebody’s beliefs are. And so I think it’s important that the employer understands, if it is taking some action, what it’s taking action about, what it is that it’s actually concerned about.

I think one thing that’s a useful distinction to draw, for example, that we’ve seen in some of the cases, is there’s a difference between expressing a view to a colleague which has then caused some disruption, and the way in which you actually do your job. And an employer is in a better position to say, ‘Well look, this affects their duties and we’re entitled to ask people to perform their duties in a certain way, and the employee in this case wasn’t and we’ve got a code of conduct that says that in that case that amounts to misconduct.’

A good example is a case called Makereth against Department for Work and Pensions, I think. I lose track of what Government deparments are called. And that may be on appeal but it strikes me it was a very sound EAT decision. That was about the doctor who, for religious reasons, would not acknowledge the acquired gender of potential benefit claimants that he would be assessing as part of his role. And the employer’s view was very much, ‘Well look, it’s your job to assess these people. We’ve got a duty not to discriminate against them because of their trans status, so we require you to be respectful of their acquired gender, irrespective of what your views on that might be.’ And he said, ‘Well, I can’t do that. I’m going to have to use their birth name and not
acknowledge their acquired gender in any way.’

It seems to me that the employer’s in a strong position there to say, ‘Well it’s about you not doing your job. It’s not about your beliefs. Anyone who performed their job in the way that you’re proposing to do would be a problem with us.’ They didn’t actually get to the point of dismissing him in that case; he resigned. But the principle is still there, I think.

So focus on why is it that the employer wants to take action, and if you find yourself thinking, ‘Well it’s because somebody’s got these beliefs,’ then you’re on really sticky ground. It’s much stronger if you can say, ‘Well this is what this person’s job is, and this is why we think there’s an issue with how that job is going to be performed.’

Speech related to the LGBTQ+ community

Robert Shore: So obviously we’re touching there on trans rights and this is obviously quite a key area at the moment. What else…I mean, if we’re to sort of summarise, where are we in terms of what tribunals have been saying? So there you’re talking about Makereth and what emerged there. What other cases can we point to and look at what good practice on the part of an employer might be? [0:30:38.5]

Darren Newman: Well, I mean, they are basically popping up all over the place, these cases, to be honest. We’re seeing regular cases. There was a case, Phoenix and the Open University I think, which was about again a harassment case where it was about the way in which colleagues reacted to someone’s gender-critical views. Meade and I think it was Westminster Council. And that again was someone expressing these views and here it was the way in which the employer reacted to that, that was held to be discriminatory.

And I think a lot of these cases, the events dated before it was very clear to us that gender-critical feminism was a philosophical belief protected by the Equality Act. And employers were focused entirely on the protection of people concerned with trans rights, because of course gender reassignment is a protected characteristic and so they were very keen, quite rightly, to make sure that people weren’t discriminated against or harassed because of that protected characteristic.

So I think there’s been some catching up for employers to do, some resetting to realise that actually, this is more complicated than they thought it was, and there are rights on both sides of this argument, and they need to be respectful of both sides of that argument. And I think we’re seeing that sort of increasingly.

There’s one case I’d flag up as well, which was at the EAT and I’m sure will go to the Court of Appeal, which is – and again it’s a Facebook case – the case of Omooba, who took part in The Colour Purple, the musical. And the role that she was given was someone who was involved in a lesbian relationship. In fact, that was a key plot point in the musical. And apparently it’s much clearer in the musical than it is in the film, but I haven’t seen the film and I haven’t read the book and I haven’t seen the musical so I shouldn’t comment too much!

Robert Shore: Yes. It’s a novel by Alice Walker, isn’t it, that…

Darren Newman: There you go.

Robert Shore: A successful book, an extremely successful movie.

Darren Newman: Extremely successful movie. Apparently the movie played down the lesbian nature of the relationship in a way that the musical celebrated that. So the person who took the part had a historic Facebook post from several years ago where she had basically expressed a religious view about same-sex relationships, and it was about being clear about the fact that certain kinds of relationships are sinful and that, you know, it was a conservative, religious view on that point.

When she was given the part, that blew up into a social media storm when people found that Facebook post. She wouldn’t renounce the Facebook post because it reflected her genuine beliefs, and the part was withdrawn from her. And the question was whether that was discrimination. And the distinction that was drawn by the tribunal and by the Employment Appeal Tribunal, was between her belief, which is obviously protected so we can’t treat her less favourably because of her belief, and the social media storm which caused a genuine commercial problem for the employer because it was threatening the viability of the entire project, to the extent that they were worried about demonstrations outside theatres, hits on tickets sales, would some venues refuse to take the show, you know. It was potentially an absolutely existential threat to the show. And the EAT allowed that distinction to be drawn and said fundamentally that wasn’t a decision about her beliefs. It was a decision about the social media storm. And I struggle with that a little bit in drawing that distinction, and I find it a little bit worrying that an employer can give in to a social media storm that is so clearly linked to a protected characteristic. Change the protected characteristic. Imagine that it was a racist social media storm. Would we be quite so sympathetic to the employer’s position in those circumstances? I think not.

So this issue of how you distinguish between somebody’s belief, which is protected, and the things that come around that belief which are potentially not protected is, it strikes me, a really tricky issue. And ultimately this has got to end up in the Supreme Court, this issue. The whole issue around how you navigate beliefs that have a genuine impact on other people and a genuine impact on the employer but are also protected from the point of view of the individual, I think is going to end up in a Supreme Court case.

The problem is, it’s not going to do that for a couple of years. It’ll take that long to get to the Supreme Court, and in the meantime we’ve got to try and find a way through it.

Robert Shore: Yeah. I mean, actually, if you were drawing up a policy on social media use then what should it say? What should an employer say about social media? Just very briefly, a couple of phrases there. [0:35:31.9]

Darren Newman: I think I would ask people to be mindful. I think I would remind employees that when they’re on social media they are publishing things and that things they say on social media have a sort of permanent effect in the way that things they say down the pub don’t. And I think that’s a valuable thing to say in a policy ‘cause I think lots of employees don’t realise when they’re chatting on Facebook or something that this is something that somebody can save, download, put in a file, present to their employer sometimes later. So reminding employees of that fact, I think, is a useful thing to do.

But I think making sure that people express themselves in a respectful way is a reasonable thing to say in a policy. And I think making an employee aware of where these issues might be of concern to the employer and making sure that there is a gap between what they’re expressing and what their employer…who their employer is.

So thinking about how you identify your employer in your social media profile and how you make sure that you’re not speaking for, or that what you’re saying is not about your work. So I would draw a clear line between…I was going to say ‘tweeting’. It’s not even tweeting anymore, is it? But a social media post of some sort that is about your life or your opinions and a social media post about the things that happened to you at work today. And you need to be very, very careful if you’re an employee if you’re saying anything about something that links to work, especially if it touches on these sensitive issues. I think those are all useful things to set out in the social media policy.

What you can’t do, though, is say, ‘Our social media policy is you must not say gender-critical things,’ or, ‘Our social media policy is you must not say things that are anti-Israel.’ You can’t take sides in your social media policy between protected characteristics. It has to be evenhanded.

Robert Shore: Yeah. No, that’s really valuable. And I think there was an early sort of court judgement, in terms of particularly in an employment law setting, where a judge said, ‘Actually, you know, Twitter is a bit like ordinary conversation.’ I think that was an early position. [0:37:54.2]

Darren Newman: Yeah. In a sense, you know, I’ve been doing employment law a while and I remember when I was first writing about off-duty conduct we would be talking about a conversation down the pub. And you know, did an employee who criticized their employer in a conversation down the pub, were they acting in breach of the duty of good faith because they told five of their mates what a rotten employer it was? And you know, we did have cases like that. But obviously if what you’re saying on social media you don’t then control, you don’t know the extent to which you’ve published that. Maybe it’s going to be seen by ten people on Twitter, maybe it’ll get picked up and it’ll be seen by 1.5million people on Twitter. You don’t know when you start it.

I do think sometimes employers need to be mindful to just keep things in proportion when they see things online. You know, it’s worth checking, ‘Well how many people did actually see this really?’ You know, if someone said something on their Facebook page and their Facebook is private and it’s been seen by, I think in the Higgs case, 40 friends, you know, it hasn’t gone viral, it hasn’t been seen by thousands and thousands of people. I think employers need to keep things in proportion sometimes, rather than just immediately say, ‘Well you put it online so anyone could have seen it so you’ve brought us into disrepute.’ Sometimes you need to be a little bit realistic about how many followers somebody has and what the reach of their social media position is.

Conclusion

Robert Shore: So Darren, that’s absolutely fantastic as an overview. I mean, is there anything else you’d like to add in terms of what employers can do to protect themselves and their employees? [0:39:30.0]

Darren Newman: The thing I find myself saying about this is just, ‘Oh, it’s all very tricky, you know.’ So be careful about it, I think, and always try and focus on the business needs and how this impacts on the way the work is done, and try not to get bogged down in picking apart someone’s opinions and thinking about whether they’re right or wrong or whether you object to them or not. Try and focus on, ‘Realistically, what is the impact on other people? How much upset is this causing? Is there a way of solving this problem without necessarily stopping people from saying what they need to say?’ and trying keeping that in proportion. But if you always focus on what the business needs, what the impact on the business is, you’ll be in a stronger position ‘cause you’re more likely to understand that.

Robert Shore: Well I think that’s a really good note on which to end this edition of the podcast. And in doing that, I’d like to thank Darren again for his insights today, and direct listeners to some associated resources on the XpertHR website, of course. Links are provided in the show notes to a number of the cases that Darren’s been discussing. And so with that I’ll just say, until next time.