Cases involving conflicting rights and freedoms, in the context of protected beliefs and discrimination, continue to attract attention. They demonstrate the difficult balancing act businesses must undertake concerning freedom of speech, weighed against the rights of individuals, including the LGBTQ+ community.
Several well-publicised cases in recent years have centred on the much-debated topic of ‘gender-critical beliefs’ and whether action can be taken as a result of how such views are expressed. An example of this was the case of Maya Forstater, who was recently awarded more than £100,000 in compensation after her contract was not renewed following tweets expressing the belief that biological sex cannot be changed.
While each case will turn on its particular facts, the following should be considered when seeking to justify taking action as a result of the expression of a protected belief (for example, a post on social media) and thereby avoid a finding of discrimination: what objective is the business seeking to achieve?
An example might be the wish to ensure that LGBTQ+ groups feel safe and included at work. In considering that objective, the business should contemplate if it’s sufficiently important to justify the limitation of the right to express the belief and if the limits placed on the freedom of expression reasonably connect to that objective. They should also consider whether a less intrusive method could be used to achieve the same aim.
In considering the above, a proportionality assessment should be undertaken. In carrying out that assessment, the organisation should think about the content of the posts, the tone of the posts, the likely audience, the extent and nature of the intrusion on the rights of others and the consequential impact on the business. It may also be relevant to consider whether the individual has made clear the views are their own or if they might be construed as the company’s views, and whether that presents a potential reputational risk.
Is there a potential power imbalance given the role/status of the individual making the posts, compared with those whose rights are intruded upon? If yes, that might tip the balance in favour of taking action.
It is also important to consider the nature of the business, particularly where there is a potential impact on service users or clients.
What should businesses do?
The legal position is not straightforward, but it’s clear that a proportionate response is vital. Organisations should avoid taking automatic or impulsive reactions to social media posts or complaints about such posts – a considered and balanced approach is necessary. However, this does not mean businesses cannot take a clear stance on LGBTQ+ inclusion. In fact, including clear principles on diversity, equity and inclusion in internal policies, documents and networks may assist in supporting a decision to act against inappropriate expressions of views that contradict organisational values.
When it comes to managing the use of social media, businesses should not seek to prohibit discussions entirely. Instead, for example, ask individuals to make clear that views expressed are their own, request that people are mindful of their language and that any debate they engage in is done so in a respectful and considerate manner and, importantly, be clear on whether social media may be monitored and when action may be taken.
The debate surrounding gender-critical beliefs and LGBTQ+ rights will continue. It is an important and complex topic, where views are often polarised. Because of this, employers may be keen to distance themselves from certain views for fear of negative repercussions and reputational damage. It can also be difficult to disregard personal opinions when considering what action to take (or not take).
Ultimately, businesses must prioritise inclusivity, foster open dialogue and implement robust policies and practices that respect and protect every individual’s rights.
Charlotte Smith is a director in the employment team at Walker Morris