Andrew Rhodes: How to establish policies on belief and expression to avoid claims

belief and expressionWith general election campaigning getting underway in the UK and US, as well as the continued culture wars all feeding into increased political polarisation, there is a considerable risk of disagreements spilling into the workplace.

In response to this risk, employers should establish or review their internal policies on political beliefs and their expression if they wish to avoid legal claims. Internal workplace policies that set guidelines on how to discuss politically sensitive topics, such as the UK and US general elections, can help mitigate tensions and maintain a productive working environment.

This guidance can range from asking people to keep their conversations calm to restricting it for the benefit of the business and its clients where necessary. However, employers need to balance the needs of the organisation, the duty of care to protect workers from bullying and harassment and the right of employees to freedom of speech and expression.

To help craft a workplace policy concerning political discussion, employers should understand what political opinions are covered under the Equality Act 2010. To understand what is and is not covered, the legal profession uses the Grainger criteria.

Comprised of five criteria elements that a belief must meet for it to be covered by the Equality Act 2010, the Grainger criteria was established in 2009 following the case of Grainger v Nicholson. The criteria details that the belief must be genuinely held, it must not be an opinion or viewpoint based on the present state of information available, it must be a belief as to a weighty and substantial aspect of human life and behaviour, it must attain a certain level of cogency, seriousness, cohesion and importance, and it must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.

Supporting a political party, such as voting for Labour or Conservative, would not on its own constitute a philosophical belief under the Equality Act. Opinions on topics such as school funding or net migration where such opinions are simply views based on the available evidence, would also not be covered.

To receive protection from the act, the employee must show that their political support amounts to a philosophical belief. As a result, employers can enforce policies that limit or restrict political topics from the workplace, so long as it does not infringe on the individuals’ rights to freedom of expression.

Some businesses and industries may find that it is necessary to implement policies deterring employees from discussing political topics while working due to the industry or customer base. For example, teachers must be politically neutral due to having a wide variety of students from different backgrounds, as well as the risk of undue influence from a position of authority. This is valid reason to create a politically neutral space.

The easiest way to proceed is to implement a policy requiring that political discussions are kept civil and appropriate. Employers must remember that they are vicariously liable for the actions of their employees if an employee is harassed on the grounds of their beliefs, and it is the employer’s responsibility to address the matter.

One example of a protected belief would be a gender critical view, which is the opinion that it is not possible for individuals to change their natal sex. While people are free to hold gender critical beliefs, the business must ensure that the way in which this belief is manifested does not amount to harassment. For example, deliberately dead naming a team member or deliberately using incorrect pronouns, might, depending on the wider context, constitute harassment.

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Senior leaders should be aware of such situations and seek to manage them, as if they do not, they risk the possibility of being taken to an employment tribunal.

Andrew Rhodes is a barrister at No5 Barristers Chambers