Belief Discrimination in the UK – An Effective Employer Defense

Article by Josephine Rendall-Neal, Littler

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In Randall v Trent College Ltd and others, the UK Employment Tribunal ruled against a school chaplain’s claim of religion and belief discrimination (amongst other claims). The reason for his treatment by his employer was not his belief, but the objectionable manifestation of his belief (meaning he manifested his beliefs in a way to which objection could justifiably be taken). This case shows how this argument can be successfully run by an employer on the basis of strong facts in their favour.

With the number of UK redundancies during December 2022 having doubled compared to the same period during 2021 and a number of high-profile layoffs being announced daily, more businesses will likely have to make difficult decisions regarding potential reductions in their workforces in the coming months. This Insight highlights some of the legal and practical issues to consider when making reductions in force in the UK. 

The UK does not have a direct equivalent of the U.S. WARN statute. Instead, even small-scale RIFs involving as few as one employee require individual consultation and can often take at least 14 days to implement. Collective consultation with elected representatives (even in non-unionised businesses) will be required if 20 or more employees are impacted and can require 45 days to implement.  

So what were the facts?

In Randall, a school chaplain gave two sermons to students aged 11-18 on the topics of gender equality, same-sex marriage, and LGBTQ+ rights in 2016. The school received complaints following these sermons from both students and staff who were upset by “the underlying message that it is a sin to be LGBTQ+” and “that the majority of Christians believe that homosexuality is sinful unless homosexuals remain celibate.” The school asked Mr. Randall to cease giving sermons of this nature, citing the complaints and the safeguarding issues at play when speaking to this age group about their sexuality (including well-documented risks of anxiety, depression, and self-harm). Mr. Randall agreed, and the school took no formal action, preferring a gentler approach at this stage.

Sometime later, towards the end of the 2017/2018 academic year, the school decided to introduce “Educate & Celebrate” (E&C), a best practice programme recognized by Ofsted and DfE in order to take “a whole-school approach to tackling homophobic, biphobic and transphobic bullying and ingrained attitudes in schools.” Mr. Randall disagreed with the school’s E&C programme, believing that it went beyond a neutral stance of inclusivity into active promotion of ideas which he believed amounted to identity politics.

In June 2019, a student asked Mr. Randall “how come we are told we have to accept all this LGBT stuff in a Christian school?” This led Mr. Randall to deliver another two sermons called “competing ideologies” on this topic. The ET considered that Mr. Randall was aware that these might ruffle a few feathers but that he proceeded to deliver the sermons without warning (or discussing the content with anyone in the school’s faculty). The school received unprecedented numbers of complaints about the sermons.

Following this, Mr. Randall underwent a disciplinary process, which led to a decision to dismiss him for gross misconduct. The dismissal was overturned on appeal and replaced with a final written warning because Mr. Randall had not received formal warnings for earlier incidents and the school wanted to give him one final opportunity to improve the issues.

At the start of the pandemic, the school had to put members of staff on furlough including Mr. Randall, following which the school underwent a restructure which ultimately led to Mr. Randall’s role as a chaplain being made redundant. Mr. Randall was dismissed. The school had not re-employed a chaplain at the time of the trial (and appears to not have done so to date). Mr. Randall argued that the real reason for his dismissal was his religious belief.

What did the ET decide?

Mr. Randall brought claims for harassment, victimization, unfair dismissal, and direct discrimination. He withdrew an indirect discrimination claim. The Employment Tribunal found against him on all of the claims:

  • The redundancy of Mr. Randall’s role was genuine. The school presented compelling surrounding evidence on the financial need for redundancies, the measures it had taken to prevent Mr. Randall’s role being made redundant, and alternative roles it had explored for Mr. Randall.
  • The school’s actions in response to Mr. Randall’s sermons were by reason of the objectionable manifestation of his belief, rather than the belief itself. It was the time, the place, to whom and the manner in which Mr. Randall had expressed his belief which amounted to an objectionable manifestation of that belief. The facts of the case were crucial to the school’s defense on this point: Mr. Randall had delivered sermons after being instructed not to do so by the school, in breach of their policies to protect their pupils’ health, in a sermon setting where questions and debate were impossible, to an age group which was considered inappropriate for the sermon’s content. Therefore, the Tribunal found that there had been no direct discrimination or unlawful harassment on grounds of his beliefs.
What can employers learn from this?

This case highlights a number of good employer practices:

  • When carrying out redundancy consultations, it is important to demonstrate in open documents (i.e., not legally privileged) that a genuine consultation occurred.
  • Policies should be clear and conveyed to employees.
  • Employers should communicate conduct issues and do so at an early stage.
  • Employers should be clear about the reasons for any negative actions taken against employees (whether disciplinary or other, such as performance criticism, lack of pay rise, etc.). In the absence of a stated reason, it may be more difficult to argue that an action was not discriminatory.

Philosophical/religious belief cases have become more common over the last few years. The questions of whether actions arise from a belief or the manifestation of belief, and whether that manifestation is objectionable, are still relatively new – the leading case is just over two years’ old. The employer in this case was successful in great part because of the strength of its underlying evidence. Conversely, in the 2022 Maya Forstater v CDG Europe case, the employer failed to convince a Tribunal that its employee’s tweets, which had offended members of the transgender community, were objectionable manifestations of her belief that sex is immutable from birth.

It is important for employers in situations involving conduct issues and philosophical/religious beliefs to bear in mind the practical points above in order to put themselves in a strong position in the event of a claim.