HR briefing - March 2024

19 March 2024

Welcome to this month's briefing for HR teams and in-house employment counsel – bringing you employment law highlights in an easy-to-read package.

Rates and limits

There are plenty of new rates to keep in mind from April, including for statutory maternity pay, statutory sick pay, unfair dismissal and redundancy. We have created our annual rates and limits card for 2024, which contains all of the information you need in one place.

Religion and belief discrimination

We’ve covered a number of cases in recent months exploring the kinds of beliefs that qualify for protection, when a belief can be distinguished from its outward manifestation, and how belief discrimination interacts with other discrimination protections. We can now add two more cases to the list, one looking at whether anti-Zionism qualified for protection, the other looking at whether an actor lost a role because of her belief, or because of the outcry over that belief.

The first involved a politics professor with an avowedly hostile view of Zionism. He categorised Zionism as imperialist and racist, and campaigned widely against it. His campaigns included alleging that university Jewish societies were Israeli lobby groups, and the "pawns" of Israel. The campaigns unsurprisingly led to complaints from students, MPs and others, and led to a disciplinary process. Importantly, an external investigator concluded that the professor was not antisemitic, and not in breach of law. Notwithstanding that conclusion, the university ultimately dismissed him. The first question for the Employment Tribunal was whether his beliefs qualified for protection. That required it to go through five criteria, the so-called Grainger criteria from the case of that name. The five criteria are:

  • the belief must be genuinely held;
  • it must be a belief and not an opinion or viewpoint;
  • 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, not be incompatible with human dignity and not conflict with the fundamental rights of others.

That final criterion was recently examined in the context of gender-critical theory, with the EAT deciding that only the most extreme views – akin to Nazism – would fail the test. Given that all sides accepted the professor was not antisemitic, it will therefore not come as a surprise that his views passed the test here. Much more controversial is the Tribunal’s conclusion that the university’s decision to dismiss him was both unfair and discriminatory. Although the Tribunal found the way in which the professor had conducted his anti-Zionist campaigns was “culpable and blameworthy”, it concluded that a warning would have been a more proportionate sanction. Given the depth of feeling on both sides, the cross-party condemnation of his views in Parliament, and the fact that the Government had waded into the disciplinary process, describing the views as reprehensible and warning the university of the consequences of not dismissing, that conclusion has not been universally welcomed.

The second case involved an actor who, some years ago, posted on social media to the effect that same-sex relationships were "sinful". Those posts derived, ultimately, from her religious beliefs. The posts were relevant because they were publicised after the actor had secured the role of Celie in a production of The Colour Purple (the role played by Whoopi Goldberg in the acclaimed 1985 film version, and by Fantasia Berrino in the version in screens at the moment). Celie is a lesbian character, and the script for this production called for some degree of same-sex intimacy to be portrayed on stage. Regrettably, as it turned out, the actor had accepted the role without bothering to read the script, something she only got round to doing shortly before the Tribunal hearing in this case. Had she done so at an earlier point, she would have realised what the role entailed, declined it, and avoided quite a substantial degree of litigation. At events transpired, however, the posts created a public outcry, which threatened the financial viability of the production, and which led to the role being withdrawn. That decision formed the core of the Tribunal claim in this case, the fundamental question being whether the decision was an unlawful act of discrimination on grounds of belief, or a justifiable step taken to maintain the viability of the production, albeit in the context of a religious belief. The finding in this case was that it was the social media storm that caused the decision – that was permissible and not discriminatory.

Both cases leave important questions unanswered. If the media storm was the root cause in the actor case, why was the media storm, the cross-party condemnation and the Government’s intervention not the root cause in the professor case? If an employer reasonably fears a media storm, can it be right that it has to wait for that storm in order to take a disciplinary step? How culpable must a person’s conduct be to allow an employer to take action, even if the conduct is ultimately rooted in a protected belief? Hopefully either the Court of Appeal or Supreme Court with clarify this challenging area of law in the near future.