Employment Update
By Kate Palka
Gender Critical Beliefs
There has been an increase in claims by claimants who alleged they had been dismissed, undermined and/or treated unfairly for expressing, so called, gender critical beliefs.
Employers must deal with fundamental differences in values or beliefs that emerge between colleagues, particularly where there are strong feelings on both sides. This can often lead to grievances and claims.
Workers have an absolute right to hold their beliefs at work, but do not have the same absolute right to express those beliefs. Employers can impose restrictions on what workers can say, but these must be reasonable, and they must be able to justify this. This can be a difficult balance to strike.
Higgs v Farmor’s School
The Employment Appeal Tribunal (EAT) sets out ‘basic principles’ of that balancing approach:
- The freedom to manifest belief (religious or otherwise) and to express views relating to that belief are essential rights in any democracy, whether or not the belief in question is popular or mainstream.
- The manifestation of belief will be protected but not where the law allows the restriction of the expression to the extent necessary for the protection of the rights and freedoms of others.
- The employer must always consider whether its objective is sufficiently important to justify the limitation of the right in question, whether the limitation is connected to that objective, whether a less intrusive limitation might be imposed and whether, balancing the severity of the limitation on the rights of the worker concerned against the importance of the objective, the former outweighs the latter.
The employer must always consider:
- The content, tone and extent of the expression;
- The employee’s understanding of the likely audience;
- The impact on the employer’s ability to run its business;
- Whether the worker has made clear that the views expressed are personal or whether they might be seen as representing the views of the employer, and whether that might present a reputational risk;
- Whether there is a potential power imbalance given the nature of the employee’s role and that of those whose rights are intruded upon;
- The nature of the employer’s business, e.g. where there is a potential impact on vulnerable service users or clients
Note, gender critical beliefs, as determined by belief, are protected characteristics under the Equality Act 2010.
Neurodiversity
Borg-Neal v Lloyds Banking Group
The Claimant (17 years employed) had used a racially offensive word in a race education course, as part of a question about what he should do if a black employee used the word. He immediately apologised but was sacked for gross misconduct.
He succeeded in a claim for unfair dismissal and also discrimination. His misjudged use of language arose from his disability.
The Tribunal found that dismissal was not justified due to the profound impact on the Claimant of dismissal and given that the employer could have achieved its aims in other ways, for example by providing further training.
Habib v Dave Whelan Sports
A dyslexic claimant was granted a rehearing as the employment tribunal initially failed to consider that inconsistencies in evidence should not necessarily disadvantage a dyslexic witness.
What should employers do?
- Acknowledge and adjust for neurodiversity in the workplace;
- Emerging case law shows that neurodivergent employees are likely to be classified as disabled under discrimination law, thereby necessitating reasonable adjustments to be made as required;
- Enhance managers’ understanding and awareness of neurodiversity to foster a more inclusive environment and reduce legal risks, such as harassment claims due to inappropriate comments.
- Look for opportunities to specifically recruit neurodivergent individuals for certain roles;
- Consider specific policies.
Get in touch
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It is also worth exploring the employment law resources on the Insights page of our website, and you can download our Your People guide for advice on establishing a living People Strategy in your business.
