There have been two recent high-profile Employment Tribunal cases that have dealt with the issue of what is a “Philosophical Belief” under the Equality Act, which would entitle the individual to the protection against discrimination.
In the first case, Forstater v CGD Europe, Ms Forstater lost her argument that her Gender Critical Beliefs were a Philosophical Belief.
In the second, Casamitjana v League Against Cruel Sports, Mr Casamitjana won his argument that Ethical Veganism was a Philosophical Belief.
At the outset, it’s worth making the following points, especially as they have been frequently misrepresented in media reports
- An Employment Tribunal decision does not set any kind of legal precedent. It applies only to the specific case in question. However, both cases do illustrate the approach a tribunal is likely to take to any dispute, so it’s worth employers understanding how the decision has been reached.
- The fact that something is a Philosophical Belief does not mean it is the ‘same’ as a religion – simply that the law protects those who have deeply held values in the same way as it protects people with religious beliefs.
What both tribunals asked was whether the belief in question met the 5 tests set down by the Courts. These are:
- It must be genuinely held
- It must be a belief, not an opinion based on currently available information
- It must be a belief as to a weighty and substantial aspect of human life and behaviour
- It must have attain a level of cogency, seriousness and cohesion
- It must be worthy of respect in a democratic society and not be incompatible with human dignity or in conflict with the fundamental rights of others
Forstater lost her case on the final point – her views were seen to be in conflict with the fundamental rights of a group of other people (transgender individuals). (It’s almost certain that this case will go to appeal, so we may have a series of rulings on this particular issue over next few years).
There have been a lot of over-excited comments about this whole topic, including some from HR people who ought to know better. So to clarify
- Support for a particular football team is not a philosophical belief
- The decisions do not mean that ‘women are treated as being below animals’
- People are not protected because of the food they eat (or don’t eat)
- There are no onerous new “restrictions” placed on employers.
For a small business, there are three key ‘take-aways’ from these cases
- These are issues that people have strong views about. But in the same way that saying you don’t believe the speed limit should be 30mph is no defence against speeding, your personal views of the issue are irrelevant to what the law says
- There is no ‘hierarchy of equalities’ – the fact you have one protected characteristic doesn’t justify discriminatory behaviour against a different protected characteristic
- Make your employment decisions – be they recruitment, promotion, dismissal etc – for clear business reasons, not because of someone’s personal characteristics.
Some months ago I was working with a client on a recruitment project, and they provided me a copy of their “Equal Opportunities Monitoring Form”. It was certainly a comprehensive document, covering as it did around 20 different definitions of ethnic origin, a dozen major world religions, an option to declare if your birth gender was different to your current gender and five options for sexual orientation. In line with good practice the form carried a declaration that it was not part of the selection process and would be detached from the individual’s application; it was anonymous and every question had a “prefer not to say” option.
This sort of form is pretty common throughout HR departments – certainly in the UK – and it is, in my experience, genuinely used for the stated purpose, i.e. simply monitoring applications to ensure that the organisation is attracting candidates from all sections of the community. But something about it left me feeling uneasy and wondering why we are really doing this. While I have had conversations in the past about why so few women are applying for a particular role or that the company seems to have an issue attracting candidates from a minority ethnic group despite being based in an area which has a high population, I can honestly say that I’ve never had a discussion about “this vacancy seems to be attracting a large number of transgender candidates – I wonder why that is?” or “We’re not getting many Sikh applicants, do you think we’ve got a problem?”
Now that could be that as a profession we’re just not as aware of discrimination when it doesn’t involve race or sex. But it could also point to the fact that we are operating simply as data collectors in order to tick a box (and indeed in the traditional risk-averse HR way, storing the information purely as insurance against a discrimination claim: “Us – discriminatory? We’ve had 17 lesbians apply in the last 6 months”)
But my main sense of unease is the intrusive nature of the questions. We talk a lot about candidate experience and trust in employment relationships. Yet for many individuals, one of their first contacts with a potential employer is to be asked a lot of extremely personal questions – and then to believe that someone they have never met will keep their stated promise that “this information doesn’t form part of the selection process”.
Of course, without the information, organisations won’t necessarily know if we do have a problem in recruitment. But is there a better way to do it? One that better balances the company’s requirements without the need to pry into personal information that we admit is of no relevance to the role we’re recruiting for. I don’t have an answer – do you?
Social media went crazy over “Harry Potter girl” (her words not mine) Emma Watson and her speech to the United Nations last week about Gender Inequality. Surprisingly for a speech promoting feminism, the majority of negative comments (aside from the hoax “nude photos” campaign) were from other female commentators critical she had watered down the message to make it palatable to men (perhaps the trolls who gave other women such as Carolyn Criado-Perez such grief thought Hermione might turn them into actual trolls).
One area which was suspiciously quiet about the speech however was HR. As a profession we can’t change the world, but we do have a significant influence over the world of work. And within the speech there were a lot of challenges that we should be happy to pick up.
So what can HR do? Here are just a few thoughts:
- Looking at your organisation’s workforce – are there certain jobs/areas that are heavily male or female dominated? And is there a wage/salary discrepancy between the two? If so, is there anything you can or should do to address them?
- What is your attitude to issues like shared parental leave or flexible working? Is it a grudging acceptance that “it’s the law so we’d better do it”, or do you positively promote it as being good for both employer and employee?
- What is the management style of your organisation? If it’s based on aggressive “command and control” with an emphasis on presenteeism and competition rather than collaboration and team work, then what are you doing to challenge and change it?
- Address mental health issues in the workplace. This can be as simple as including mental health in absence management briefings and training. And if you don’t feel fully clued up on mental health, then make it one of your own personal development targets
- Challenge inappropriate behaviours. While the nude calendar on the office wall has been generally consigned to history, there are still many workplaces where “banter” is used to exclude, belittle or isolate those who are “different”.
And do you know what? As I typed that list, I realised that all these are things I’d expect a competent and qualified HR professional to be doing as a matter of course in the organisation that they worked in. So why aren’t we all doing it already?