Roger Kiska (Christian Legal Centre) provides insight into the rights that Christians have in the workplace as they seek to live biblically faithful lives
It is becoming increasingly difficult for Christians to live out their faith at work. In a nation rooted in Christian history, with a Monarch who is the titular head of the Church of England, this fact should rightly shock you.
But the reality is, while work culture becomes more ‘progressive’, Christians often find themselves in situations where they must either hold their tongue when confronted with ideological and political activism in the workplace or face the consequences of disciplinary action.
Increasingly, the activism is no longer passive, and Christians are being told that they must act in a certain manner which conflicts with their beliefs or consciences or else be labelled a bigot and suffer the consequences.
Given the situation on the ground, there is reason for concern. Nevertheless, there is a disconnect between this trend of intolerance and discrimination against Christians and what employment and human rights law actually says.
Let’s look at the legal state of play for several increasingly common scenarios for Christians in the workplace.
What if your employer tells you to join in with Pride?
Being an employee does not mean you have to check your rights in at the door.
The law protects your religious and philosophical views, and your employer cannot require you to support or affirm Pride. Similarly, your employer cannot require you to hold beliefs which you do not. The right not to hold a particular belief is absolute. This includes the right not to have to manifest or promote Pride.
The European Court of Human Rights has been clear that an employer must balance its interests with the rights of employees. Those rights include freedom of religion and belief, freedom to conscientiously object to supporting Pride, freedom from being subjected to discriminatory Pride policies, and the right not to have to participate in a public assembly in support of Pride.
Similarly, the Equality Act prohibits various forms of discrimination. If your employer has a Pride-affirming policy or requires you to support Pride in practice, and as a Christian you object to doing so, you may have a claim for indirect discrimination. If your employer cannot justify requiring all its employees to support Pride, even those with conscientious objections, then they will be found guilty of indirect discrimination.
Similarly, if your employer treats you less favourably because of your sincerely held Christian beliefs against supporting Pride, this could amount to direct discrimination. Lastly, if your employer, due to your not wishing to support Pride because of your beliefs, treats you in a way which violates your dignity or creates a hostile, degrading, humiliating or offensive work environment, then your employer may be guilty of harassment.
Do I have to wear a rainbow lanyard or have a Pride flag on my desk?
The law protects not only manifestations of religion, it also takes into account conscientious objection.
The Grand Chamber of the European Court of Human Rights has itself explicitly affirmed rights of conscience for sincerely held religious and moral beliefs as falling within the ambit of Article 9 of the Convention.
The Grand Chamber based its reasoning on several premises:
- That where conscientious objection was not for a personal benefit, but was based on a sincerely held religious or philosophical belief, a system should have been put in place whereby violence would not be done to that belief;
- A refusal to allow conscientious objection fails to strike a proper balance between the interests of society as a whole and the fundamental rights of the individual;
- Democracy does not simply mean that the views of the minority must be subordinated to those of the majority;
- And that far from creating inequalities or discrimination in a democratic society, provision of rights of conscience ensure a cohesive and stable pluralism and promote religious harmony and tolerance in society.
An employer is legally required to balance a sincere instance of conscientious objection against competing interests, including promoting the rainbow flag. At its heart, the rainbow flag is a political symbol, steeped in a history of activism. Some of that activism has been openly hostile to Biblical beliefs and to Christians. The question of whether requiring an employee to wear a rainbow lanyard or have a rainbow flag on their desk is a reasonable management instruction or not depends on how that instruction injures the rights and dignity of the employee being asked to do so. While no case-law currently exists which answers this question definitively, there appears to be compelling grounds for an employee to refuse such an instruction.
Can I wear a cross at work?
As the European Court held in the Eweida case in 2013, it is a fundamental right to be able to manifest one’s faith by wearing a cross or other religious jewellery in the workplace. The Court reasoned that this right exists, in part, because a healthy democratic society needs to tolerate and sustain pluralism and diversity.
Equally important, the Court noted, is the ability of a believer who has made Christianity a central tenet of their life, to be able to communicate the value of their faith to others. There is no requirement, according to the European Court, that wearing the religious jewellery in question is a duty mandated by the religion in question. It is enough that the individual wearing the religious symbol has a belief that their wearing of the symbol is intimately linked to their faith. Employers can be pointed to paragraph 82 of the Eweida judgment in case of doubt.
The Equality Act 2010 also protects Christians from being discriminated against because of their Christian faith. As with the Pride scenario, Section 13 of the Act prohibits an employer from treating a Christian less favourably than a non-Christian employee because of their faith. Section 19 prohibits an employer from implementing a provision, criterion or practice which would have the effect of disadvantaging someone because of their Christian faith.
There is a right to treat people differently despite them having a protected characteristic under the Equality Act 2010 if there is a legitimate reason for doing so and the means to achieve that aim are proportionately tailored. The same is true for a restriction of religious freedom under the European Convention for Human Rights. For example, a common argument in favour of hospital policies prohibiting the wearing of things like necklaces in an operating theatre, is that such prohibitions promote health and safety. If such policies are facially neutral in that they apply equally to all employees, religious or non-religious, and are applied consistently, then an employer may have a legitimate claim that they have acted non-discriminatorily.
However, justification is a high bar, and in the vast majority of cases, an employer should not be able to interfere with your right to express your faith through wearing a crucifix or other religious jewellery.
The Right Not to be Offended?
Whoever said speech was free was wrong. Many brave soldiers have fought and lost their lives to defend this right over the decades, and while that fight no longer includes the shedding of blood, we are still very much on the brink of losing this fundamental freedom.
What you need to know is that there is no ‘right’ not to be offended. The following points are distilled from two seminal cases: Smith and Trafford Housing Trust and the Christian Concern-supported Ngole v University of Sheffield.
- The fact that an individual subjectively takes offence at someone’s legitimate beliefs about a sensitive issue does not objectively make those views disparaging or contrary to the principles of equality. Even if colleagues who strongly hold to a contrary set of beliefs wrongly infer ill meaning where none was intended, this should not negate an individual’s freedom to express their opinion.
- Expressing a seriously and cogently held religious belief does not amount to discrimination, nor should it offend the principles of equality or diversity.
- Inherently non-work related conversations are governed by a different standard than those which take place within the formal context of work. So too are social media posts.
- Employers must balance competing interests such as promoting diversity on the one hand, and the rights of employees to their freedom of religion or belief on the other. A blanket ban on manifesting the latter to further the former may amount to indirect discrimination.
Do I have to have my ‘preferred pronouns’ at the bottom of my email?
Preferred pronouns are part of a philosophical belief known commonly as gender identity belief or gender identity ideology.
The Employment Appeal Tribunal has been clear that employees have a right not to believe in gender identity belief. It is equally true that employees have a right to hold beliefs diametrically opposed to gender identity belief. Requiring an employee to identify their pronouns, whether it requires them to adhere to gender identity belief or not, is still an infringement on religious freedom. If the desire not to identify pronouns is because of a sincerely held religious belief or conscientious objection, an employee is on strong ground to decline.
Can an employer force staff to use others’ ‘preferred pronouns’?
Requiring an employee to used preferred pronouns is de facto compelled speech.
Whether an employer may force members of staff to use others’ preferred pronouns when speaking is highly contested and fact specific. The Employment Appeal Tribunal has implied that a blanket requirement could amount to an unlawful workplace policy. It has further shown that where an employee has a conscientious objection to doing so, the employer must try to reasonably accommodate that objection.
Factors involved in balancing whether a preferred pronoun mandate would survive a legal challenge are the sincerity and cogency of the employee’s beliefs, the impact on the employee of the requirement, the reasonableness of the management instruction or policy, the vulnerability of the clients or colleagues being served by the policy and the employer’s ethos.
It is important to remember that gender identity is not a protected characteristic under the Equality Act, gender reassignment is. Mere self-identification as transgender is not necessarily enough to garner the protection of non-discrimination law. To that extent, the Employment Appeal Tribunal has noted that not everyone who identifies as trans is protected by the Equality Act. What that means is that not using a person’s desired pronouns may not even engage the Equality Act. This is why blanket requirements are so dubious.
That being said, this area of law is still desperately in need of further clarity from our courts and tribunals, or ideally from Parliament.
Do I have to join in with a diversity course which teaches things that I don’t agree with?
It is more likely than not that a management instruction that an employee must attend diversity training would be deemed reasonable.
There is no right not to be confronted with ideas we disagree with. That being said, the way in which the course is being delivered and the ideas being presented may give rise to an actionable grievance. If a Christian employee is singled out or treated less favourably than other employees because of the content of the course or how it is delivered, this could amount to discriminatory treatment or harassment because of religion or belief.
Employees should also be familiar with their employer’s work policies and whether the training may breach an internal policy regarding political or philosophical canvassing or dignity in the workplace. Scenarios may exist where a management instruction might be wholly lawful but may still lead to a successful grievance for breaching an internal employment policy.
Can I post online outside work?
In the vast majority of situations, posting outside of work should be permissible.
However, there may be circumstances where an employee can be punished for a social media post outside of work. Elements involved in assessing the reasonableness of the punishment is whether the post expressed a deeply held belief and whether the manner in which it was expressed damaged the reputation of the employer. Whether the post was public or private, whether the employee identifies his employer or gives the appearance that they are speaking on behalf of their employer, and the seriousness of the sanction the employee faces all factor into the reasonableness of any punishment an employee may suffer.
If a post expresses a deeply held religious belief and does so in a respectful manner, there should be no grounds for punishment, even if that view may offend others who strongly hold to the opposite conviction.
The Employment Tribunal, has for example, found in favour of Keith Waters who was supported by Christian Concern. He was a pastor and part-time school caretaker who was dismissed for criticising Pride and its negative influence on children. The Tribunal found that the school should have factored into their decision to dismiss the fact that they were aware that the claimant was a pastor and that the post was clearly being published in his role as a pastor.
In the case of Kristie Higgs, also supported by Christian Concern, the Employment Appeal Tribunal also reversed the decision of an employment tribunal which found against a Christian pastoral assistant at a secondary school. She had posted privately on her Facebook account expressing her concern about LGBT education and its influence on children.
The EAT found that the employment tribunal impermissibly failed to consider whether the sanction was both a necessary and proportionate interference with the claimant’s religious freedom. Lastly, it is important to remember that the law of the land is that the expression of religious beliefs, in and of itself, is not discrimination.
Can I evangelise at work?
The right to manifest your Christian faith and to convince your proverbial neighbour of the truth about Christ and salvation, is a fundamental human right. In principle, a Christian has just as much right to introduce religious themes into non-inherently work-related conversations as does any other employee to speak of personal matters.
The right to evangelise colleagues, however, is a qualified right which may be limited where an employer can evidence that the restriction is a necessary and proportionate limitation on religious freedom and pursues a legitimate aim.
For example, an employee who enjoys a position of authority over another employee, may be limited in how they evangelise to that junior employee because of the appearance of undue influence. Where religious conversations are clearly unwelcome, or may cause distress, an employment issue may also arise.
It is important to respect personal boundaries and be sensitive to the body language of the person you are speaking to. Christian employees should also be aware that some employees may make vexatious complaints against them for sharing their faith, even where doing so may be permissible. An employer’s level of religious animus or religious illiteracy may also result in the punishment of a Christian employee where there might not be legal grounds for issuing a sanction.
If you are a Christian employee being disciplined for speaking about your faith, or you are unclear about whether it is permissible to do so in your workplace, it may be wise to seek advice from the Christian Legal Centre.
Conclusion
It is troubling that with the championing of nebulous concepts like diversity, equality, and tolerance in the workplace, actual well-defined legal protections are being misapplied or entirely forgotten.
More than ever, Christians must know the law and never shy away from their Christian witness to their proverbial neighbour, whether at work or otherwise:
“Therefore go and make disciples of all nations, baptising them in the name of the Father and of the Son and of the Holy Spirit, and teaching them to obey everything I have commanded you.” (Matthew 28:19-20 NIV)
