Expression of belief on social media and in the workplace – has the tide shifted?

There are plenty of topics one could get into “hot water” for discussing, both in and outside the workplace, from the UK parliamentary elections to views held on contentious topics such as immigration and gender identity, or even holding a position on the Israel-Gaza war.

It is often suggested that individuals should “bring their whole self” to work, but is that always a good idea, or are their beliefs best kept to their private circle – and can they be? What if they post about them on their social media?

With the (still rising) popularity of social media in particular, the courts have had to grapple with those questions for some time. However, it seems that the tide has now started to shift from a hard-line “cancel” culture to a more nuanced view that requires a balancing the fundamental right to freedom of expression, with the freedoms and rights of others.

Problems can arise where individuals have conflicting beliefs, or if an individual expresses a belief that is not popular, or others might find offensive. Employers should pause and take stock before taking any disciplinary action against an employee for expressing their belief and individuals should carefully consider the manner in which they express their beliefs.

When will a belief be protected?

The Equality Act 2010 makes it unlawful to discriminate against someone because of religion or belief, or because of a lack of religion of belief.

A claimant will normally be able to establish a religious belief by showing they are adherent to an established religion. However, a non-religious “belief” is more elusive. In the case of Grainger the EAT established that any “belief” (whether religious or philosophical) must satisfy certain conditions to be protected; it must:

1. be genuinely held;
2. be a belief not an opinion;
3. be a belief as to a weighty and substantial aspect of human life and behaviour;
4. attain a certain level of cogency, seriousness, and importance; and
5. be worthy of respect in a democratic society.

The claimant in each case will have to satisfy each limb of the test for their “belief” to be protected. It will be a question of fact in each case.

A higher hurdle

There have recently been a series of high-profile cases involving gender critical beliefs.

In the case of Forstater (who was famously given a public show of support by JK Rowling) Ms Forstater posted about her gender-critical beliefs on Twitter. Colleagues saw her posts and complained that they were transphobic. As a result, her employer decided not to renew her contract. The Employment Tribunal (ET) dismissed Ms Forstater’s case on the basis that her belief was not protected as it was “not worthy of respect in a democratic society” (and therefore failed the 5^th limb of the Grainger test).

However, this decision was reversed by the Employment Appeal Tribunal (EAT). There have since been a number of decisions about gender-critical beliefs that have been decided in favour of the claimants.

It now appears to be accepted that the bar for failing the 5^th limb of Grainger test is very high and therefore beliefs that may be offensive or unpopular can still attract protection.

It’s not what you say, but how you say it

There have also recently been a series of cases that have examined the distinction between the belief and the expression of that belief.

In the case of Higgs, Mrs Higgs was an evangelical Christian who shared a series of posts on her private Facebook page expressing her belief that children should not be taught about same sex relations and gender fluidity. A complaint was made about these posts by a parent of a pupil, and she was dismissed for gross misconduct by her school. This was despite her asserting that she was neither homophobic nor transphobic, that she accepted she should have used more moderate language and that she did not suggest that her views were representative of the school’s. Mrs Higgs lost in the ET.

“Freedom only to speak inoffensively is not worth having”

The EAT analysed whether the manifestation of Mrs Higgs’ belief was “objectionable” in the context of the rights to freedom of belief and expression enshrined in the European Convention of Human Rights (incorporated into UK law via the Human Rights Act 1998). It recognised that beliefs that some may find offensive or unpopular, have a place and are indeed essential to a proper functioning of a democratic society. Those rights are qualified only as far as they affect the freedoms or rights of others. Accordingly, a proportionality exercise must be undertaken, bearing in mind the core principles of tolerance, pluralism and dialogue.

The EAT held that whether or not an expression of the belief is objectionable, would include the following factors:

1. the content (recalling that even unpopular content is protected unless gratuitously offensive);
2. its tone;
3. the worker’s understanding of the audience’s views;
4. the manner and nature of the manifestation (in particular intrusion on others’ rights);
5. the audience;
6. whether the worker specified their views are personal or that of the employer;
7. the nature of their role;
8. the nature of the employer’s business;
9. crucially, whether there were less intrusive measures available to the employer; and
10. the rights and freedoms of others.

The EAT remitted Mrs Higgs’ case to the same ET to decide, as it was not confident that its original decision would stand if this test were to be applied.

Watch this space

Mrs Higgs’ case will be considered by the Court of Appeal later this year. In particular, the Court will look at the extent to which an employer may lawfully dismiss an employee for expressing views which are based on religious beliefs in a forum which is not the workplace, is not controlled by the employer, and which has a limited number of members. Further guidance will be much welcomed.

Tips for employers

It will be important for employers to have in place clear policies (especially any social media policies) that reflect the protection afforded to those expressing protected beliefs, as well as appropriate training.

Employers should avoid having a “knee jerk” reaction to someone’s expression of belief, even if it is a minority view or may be offensive to some. Save in the clearest of cases where the expression of belief is gratuitously offensive, the employer will have to proceed carefully, gather the relevant evidence and ensure that its response is proportionate.

In some cases, the employer may be able to defend itself on the basis that the reason for the employee’s treatment is neither their belief nor the expression of that belief, but in fact other reasons (e.g., reputational risk). However, those cases will be the exceptional and fact-sensitive and, in such situations, the employer should carefully (and truthfully) document those reasons. In terms of conflict between individuals, an employer who seeks to accommodate the interests of both parties and to achieve a compromise (e.g., via mediation if necessary) is likely to do better than one which adopts an entrenched position.

Tips for individuals

For the first time perhaps, the cases of Forstater and Higgs show the importance of the freedom to express a protected belief, even if that belief is controversial or offensive to others. But this right is not unfettered.

It will be important for employees to keep up to date with their employer’s policies and training.

When expressing their beliefs outside the workplace employees should be mindful of the guidance in Higgs and consider their audience, how it might reflect on their employer and the risk of their posts being shared beyond their intended audience. For example, if on their social media profile such as Facebook the employee states who they are employed by, the risk of their posts being associated with their employer is much higher. Could their colleagues be “friends” of “followers” and complain about their posts to their employer? On LinkedIn, where the association with their employer is a given, employees will have to be aware of their employer’s social media policies regarding what posts are acceptable.

If an employee is approached by their employer because of a concern regarding their expression of a belief, they will do better by seeking to understand their employer’s concerns (whether in terms of maintaining good workplace relationships or protecting their commercial interests) and work with the employer on a solution, rather than adopting an entrenched position.