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Employers often face a dilemma when views expressed on social media by an employee provoke opposition leading to concerns about potential damage to the company’s reputation; but, to what extent can an employer act against an employee without infringing their right to express their beliefs?
29 September 2022
Case Study
In the case of Bailey -v- Stonewall and others ET/2202172/2020 (27 July 2022), an Employment Tribunal considered a claim against Garden Court, a barrister’s chambers, after it publicly announced on Twitter that the claimant, a member of the chamber, would be investigated following complaints about tweets publicly expressing her belief that women are defined by biological sex rather than gender identity.
Garden Court argued that they needed to “damp down the Twitter storm” to protect their reputation for human rights at work. The Tribunal rejected Garden Court’s argument finding that the controversy that Garden Court wished to avoid, “arose from differences of opinion on the nature of sex and gender.” This led to a finding that, “The attack could not be dissociated from her views.” As such, Garden Court was deemed to have directly discriminated against the claimant on the grounds of her protected belief.
The claimant also claimed to have suffered a detriment when Garden Court upheld a complaint by LGBT+ charity, Stonewall. Garden Court requested advice from the Bar Council Ethics Committee on the issue but did not provide them with the detailed response to the complaint that the claimant had drafted. The Employment Tribunal decided that Garden Court’s decision to uphold the complaint, and their finding that the claimant was likely to be in breach of the Bar Standards Board’s Core Duties, were materially influenced by the content of her beliefs, and thus upheld her complaint that she had been discriminated against.
Case Study
In another allegation, the claimant claimed that Stonewall had instructed, caused or induced the discrimination by Garden Court (or attempted to do so), under section 111 of the Equality Act 2010. The Employment Tribunal found that the raising of the complaint had not caused the discrimination to occur, and therefore, this part of the claim was not upheld.
The Tribunal awarded £22k in damages for injury to feelings, which included £2k for aggravated damages. This award reflected the Employment Tribunal’s finding that the claimant experienced hostility and a lack of support from Garden Court.
Employers risk being liable for discrimination if one employee is dealt with less favourably than another because of their religious or philosophical belief. Although an employer can act against an employee because of the manner in which they manifested their belief, it is often difficult to separate this from the belief itself.
This decision is similar to that of Forstater -v- CGD Europe, which we previously reported on.
One way to avoid claims of discrimination in this scenario is to ensure that the same policy is followed in response to complaints about social media posts, regardless of the content.
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