Recent employment tribunal cases concerning belief discrimination have highlighted how quickly a statement of values, whether by an employee or a business, can develop into 'a situation'.
By this we mean there could be a Twitter storm, threatening to jeopardise an employer's relationship with sponsors or damage its wider reputation, or an escalation of hostilities between staff members due to opposing viewpoints which have been expressed or shut down. There may be sudden grievances and counter-grievances to investigate, decisions to be made about suspensions and disciplinary proceedings, third parties to assuage or liaise with, resignations to deal with, press comments to be made. In short, an organisation may find itself in a very short space of time on a 'war footing', facing demonstrations outside its offices or else the possibility of boycotts from customers which threaten the viability of the business.
It is therefore surprising that many organisations will not have done a risk assessment in this regard, reacting on a case-by-case basis rather than considering, as with any emergency, which people and processes should be mobilised in the event of such a crisis. While it would be ill-advised to draw up a fixed action plan, because no two situations are the same, there are nevertheless common factors in some recent cases which can serve as learning points in an attempt to spot and mitigate risk. In this article we consider what learning points can be gleaned from the factual matrix of a recent case in this area, Fahmy v Arts Council England (2023), and will consider other cases in a future edition.
The case of Fahmy v Arts Council highlights the dangers of social media behaviour (the negative side of which, in our view, is characterised by immediacy and lack of individual accountability) becoming dominant in the workplace. One witness described what occurred as "Twitter-style mudslinging hiding behind an HR process". In that case an employee was held to have been harassed on grounds of her gender-critical beliefs following a Teams call in which she had challenged statements describing a third-party organisation as transphobic and was then herself labelled as transphobic. Following the meeting a staff petition, referred to as an 'allies support sheet', was circulated by an employee in response to the discussion, reiterating the importance of calling out anti-trans behaviour. This led to the claimant feeling harassed and then lodging a grievance under a Dignity at Work policy.
Although the petition was taken down within 26 hours, her employer was still found to have harassed her. Further, it could not avail itself of the defence under the Equality Act 2010 that it had taken all reasonable steps to prevent harassment from occurring. It was noted that the Arts Council did not provide training to staff on gender critical beliefs. It was pointed out that an act of harassment need not be targeted to someone individually in order for harassment to have taken place. The definition in the Equality Act 2010 refers to the creation of an environment which is intimidating, degrading or hostile and this can come about in covert and diffuse ways.
With the example of Fahmy in mind, employers should ask the following questions and consider the following in any risk assessment when seeking to anticipate and mitigate risks in this area:
- When promoting Diversity, do we accept and promote a genuine diversity of beliefs (subject to these being worthy of respect in a democratic society, not incompatible with human dignity and not interfering with the rights of others?). Is this reflected in our Diversity training and communications?
- Do we balance the need to promote Diversity with the right of everyone to be treated with dignity and respect at work?
- Where a belief conflict occurs, identify which stakeholders there are and the commercial and employment law sensitivities at play. Notwithstanding funding implications or press interest, how do we as an employer deal with our duty of trust and confidence towards the employees involved and our duty to protect their health and safety?
- Do the people investigating a disciplinary or grievance relating to belief understand how the Equality Act 2010 works and an employer's duties in respect of protecting beliefs? Is training or advice needed in this regard?
Prior to a group meeting on Teams about beliefs and values, it would be a good idea to remind staff to keep chat non-personal and respectful of the rights of others to disagree. Since there may be a snowball effect with comments online in a group chat, it might be better if comments are made verbally since it can be easier for an employer to intervene if the chat develops a nasty undercurrent.
