Abstract
Over the past two decades, there has been a growing interest in the impact of human rights discourse on the employment relationship and employment rights. In particular, in light of the increased opportunity, or risk, of the public exposure of an individual's life outside of work, more attention has been drawn to the implications of employees’ private life to their place of employment. The purpose of this article is to highlight, advocate for, and insist on a number of principles and issues that seem to be a matter of consensus in general, and amongst lawyers in particular, but which get diluted and even ignored within the context of freedom of expression in the employment realm. Principally, these include, first, a reminder of the strong importance awarded to political speech, or to speech on live issues of public importance; second, that the right to freedom of belief that does not have concrete, objectionable manifestations is a rare right that enjoys absolute, unqualified protection; third, that the distinction between the protection of expression of belief and that of speech is muddled, to an extent inherently, but clearly divisions may be drawn; fourth, that provisions that restrict freedom of speech in employment contracts and handbooks should be viewed critically; fifth, and finally, the possible practical limits of the above principles, by reference to concrete situations, such as close, or even hierarchical, relationships; positions of authority and responsibility (e.g., on probation or promotion committees); and true reputational damage to the institution.
1. ‘Public’ beliefs are more important
A number of scholars have justifiably highlighted the fact that speech that relates to public matters is not the only speech that should be protected, 1 and that there is inherent value in ‘low level’ speech. This position is not contested here. And yet, there seems to be a danger that trivial, drunken, 2 slanderous (e.g., towards one's employer) 3 or silly speech will be conflated with speech that concerns issues that are central to one's core beliefs. In doing so, the risk is that all speech is treated as equal, and the importance for and protection of political speech is lost.
The point here, then, is not that other forms of speech are not important, but that political speech, on matters of public interest, is uniquely important. As the House of Lords noted: ‘Freedom of political speech is a freedom of the very highest importance in any country which lays claim to being a democracy. Restrictions on this freedom need to be examined rigorously by all concerned, not least the courts’. 4 And the European Court of Human Rights clarified that, as a consequence, there is ‘little scope under article 10(2) of the Convention for restrictions on political speech or on the debate of questions of public interest’. 5 In a recent case, the County Court in the UK followed by stating that ‘article 10 would protect … expressions of opinion even if they are wrong … This principle applies with particular force in the context of political speech on questions of public interest’. 6
The problem is that it is precisely in this type of situation – namely, of contested political speech - where the protection of an individual's rights is more challenging. This is because, in the vast majority of situations that lead to dismissal, the claimant's expressed beliefs do not have the benefit of ‘stupid’ or ‘drunken’ speech, but rather are of the nature that does not elicit a great degree of sympathy. They could be racist, antisemitic, homophobic, transphobic, mysoginist, anti-immigrant, etc. For example, Hertha Berlin fired the goalkeeping coach for expressing homophobic and xenophobic views in an interview. 7 A Welsh footballer was suspended after posting a homophobic message that concerned the British Olympic diver Tom Daley. 8 The normative (and not, at this stage, legal) argument could be, therefore, that we want to allow employers to dismiss employees who express such views, because we want to eradicate those expressions in society. ‘Society’ does not tolerate those views in this day and age. However, this approach falls into a couple of familiar traps.
First, the historical one: LGBT employees and those with questionable morals (like the adulterous employee who lost her job for that reason in Spiller v Wallis) 9 are just two examples of groups who suffered from their divergence from public norms previously, in a way we (justifiably) scoff at now. Of course, we feel that racism and homophobia are different, and that they truly should be eradicated, but some humility should guide us to assess the historical analogies. This is, perhaps, the rationale underpinning Lord Walker's assertion that ‘Each individual is at liberty to hold his own religious beliefs, however irrational or inconsistent they may seem to some, however surprising’. 10 As the ECtHR noted, statements which ‘offend, shock or disturb’ are protected, subject to Article 10(2): ‘such are the demands of pluralism, tolerance and broad-mindedness, without which there is no “democratic society”’. 11 And whilst Article 17 prohibits the use of ECHR to destroy the rights of others, the EAT in Forstater clarified, following ECtHR jurisprudence, 12 that ‘[t]he level at which Article 17 becomes relevant is clearly (and necessarily) a high one’ 13 and that is the benchmark against which the belief is to be assessed’. 14
Second, there is the utilitarian argument: do we really think that sanctioning, shaming and publicly ostracising such behaviour would facilitate its eradication? There is a strong argument to suggest that it would only lead individuals harbouring those inclinations to go underground, feel victimised and even, at times, start wearing their foul opinions as badges of pride. There are examples for all of the above. As Hugh Collins and Virginia Mantouvalou wrote, apropos Redfearn v UK, ‘a democracy cannot eliminate obnoxious views by permitting the imposition of economic hardship through dismissal’. 15 Instead, employers should have the courage of their convictions, opt for opening the discussion, through training and dialogue. That is where their social responsibility lies and so, I would argue, is where the law should be.
2. Protection of Belief: expression is not manifestation
Sanctioning someone for their beliefs is a dangerous road to follow. Indeed, freedom of thought and belief holds a very rare place, even within the illustrious pantheon of recognised, codified human rights, as one of the very few rights recognised as ‘absolute and [which] cannot be interfered with under any circumstances’. 16 The right to hold a belief is grounded in Article 9(1) of the ECHR, and as such is ‘absolute and unqualified’. 17 The reason for this seems straightforward, and yet perhaps, in light of its rarity, should be mentioned explicitly. As Patten notes, discussing the case of Ellis, 18 which concerned a holocaust denier, ‘[i]t is entirely possible to deplore the claimant's views in this case while asking why it is that the mere fact that he believes these things is in conflict with the fundamental rights of others’. 19 And, to clarify, responding that sanctioning an individual because of the offense caused by their belief is no different than the treatment being because of the belief itself.
We immediately note here that, as such, it is distinguished from Article 9(2) which offers the qualified (as opposed to absolute) right to manifest a belief: Article 9: Freedom of thought, conscience and religion 1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching practice and observance. 2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
At the heart of this subsection is the argument that tribunals and courts are quick to elide the distinction between Article 9(1) and Article 9(2) and consequently dilute the unique value and power of the former. In making the case for a strong/er distinction than the one that exists at present, I would also argue for a conceptual and semantic distinction which is either neglected or even dismissed: the distinction between the expression of belief and the manifestation of belief. The two distinctions, as we will see, are interlinked.
The argument for the distinction between expression and manifestation is as follows: the qualified right to freedom of belief, as grounded by Article 9(2), is concerned with the objective, and objectionable, manifestation of the belief, and not with the belief itself. Indeed, quite often, when the employer has an issue with the manifestation, the employee will refer to the belief as part of their defence. 20 In other words, the employee could, for example, agree that if it was not for the belief, the employer's sanction (for example, in respect of wearing a cross or crucifix on a necklace) 21 would have been legitimate; but the belief grants a form of justification.
In contrast, Article 9(1) is not, prima facie, concerned with any act, but rather with the belief itself to be held silently, in its pure form, often referred to as the ‘forum internum’. Hence, arguably, the strong, absolute protection that it is awarded. It is for this reason that the UN's Special Rapporteur, Arcot Krishnaswami, noted that ‘Freedom to maintain or to change religion falls primarily within the domain of the inner faith and conscience of the individual’. 22 However, he continued, ‘Viewed from this angle, one would assume that any intervention from outside is not only illegitimate but impossible’. 23 Indeed, this is the crux and the difficulty: for Article 9(1) to be of any value and meaning, it should be known (to the world, to colleagues, to the world at large) that the relevant employee actually holds the contested belief. Otherwise, what would be the merit of granting protection (again – absolute protection) to a belief that no one is aware of? Now, how can the world at large know of a belief if it is not, at some point, somehow, expressed? 24 Note: this is still within the boundaries of Article 9(1) – the protection concerns maintaining a religious belief, not ‘acting’ on it in a manner that is objectionable. The only difference is that the belief is now known to others, and so the protection of the belief becomes relevant, and not only theoretical. Think, for example of a colleague who has a sticker on the back of her personal phone or tablet which reads ‘Boycott Israeli apartheid’. She brings it to work and does not make an effort to make her belief known. However, a co-worker who supports Israel may find her position troubling. However, it is her belief, and not its manifestation, that is at issue here.
Here, then, the distinction between expression and manifestation comes to the fore. Notwithstanding some statements that indicate that the distinction is relevant and important, 25 surprisingly (at least to the author), this distinction is not always embraced fully. Moreover, on some occasions, the freedom to express the belief which, according to the argument here, should remain protected through Article 9(1), is addressed (presumably because of the reference to ‘expression’) as meriting the qualified protection of freedom of speech, more generally. Indeed, it has been noted that the ‘confusion [between, in the current terminology, expression and manifestation of belief] may stem from an unhelpful eliding of concepts from Article 9 with concepts under Article 10’. 26 So, for example, the EAT in Higgs did not distinguish between the two when stating that ‘The manifestation of belief and free expression will be protected but not where the law permits the limitation or restriction of such manifestation or expression to the extent necessary for the protection of the rights and freedoms of others’. 27
And the same can be said for the EAT in Phoenix: ‘the freedom to express or manifest one's belief even if protected by section 10(2) is qualified under Article 9 of The European Convention of Human Rights’. 28
But, confusingly, later in Phoenix: We consider that this statement was a manifestation of the Claimant's gender critical beliefs as the Claimant's belief that biological sex is real, … It is here where the distinction between the belief and the manifestation of the belief in the Eweida sense is relevant.
On the one hand, the final sentence of the quotation immediately above affirms the position argued here: the protection of a belief is synonymous with the protection of an expression of a belief, which falls under Article 9(1), and thus is not qualified as per Article 9(2). It is not helped, therefore, by the quotation's first sentence, which refers to the statement as a ‘manifestation’ of the claimant's belief, as manifestations are clearly addressed under Article 9(2). I would assert, then, that it is the last sentence that should be viewed as the right approach, whilst insisting on creating a clear and important divide between expression and manifestation of beliefs.
An interesting analysis was offered by the Court of Appeal in Ngole.
30
In that case, a social work student was expelled from his university course for expressing anti-gay sentiments that stemmed, he argued, from his Christian faith. In accepting the claim, the Court stated: [1] The University adopted a position…which was untenable: … that any expression of disapproval of same-sex relations … was a breach of the professional guidelines. … [4] The right to freedom of expression is not an unqualified right: professional bodies and organisations are entitled to place reasonable and proportionate restrictions on those subject to their professional codes… [10] The University wrongly confused the expression of religious views with the notion of discrimination. … [T]here was positive evidence to suggest that [Mr. Ngole] had never discriminated on such grounds in the past and was not likely to do so in the future…
31
By focusing, at subsection [10], on the ‘expression’ of beliefs and excluding it from the sphere of discrimination, the court seemed to say that ‘mere’ expression is entitled to absolute protection, that clearly is not granted where discrimination is at stake. Reflecting on Ladele,
32
Wintemute offers an interesting counterfactual that supports the position argued for here. Ms Ladele failed in her claim for discrimination on grounds of belief after she refused to officiate civil partnerships for same-sex couples and was subject to a disciplinary hearing. Whilst she did express her belief, she also acted on (i.e., manifested) it. So, Wintemute asks, What if Ms Ladele had not acted on her belief? What if she had only expressed her belief outside the workplace, perhaps on social media, but not directly to her lesbian and gay colleagues in the workplace (avoiding any question of harassment)? What if she had officiated at all the civil partnerships that were assigned to her, and therefore had not discriminated against any same-sex couple? If these had been the facts of Ladele, and she had been dismissed because colleagues were offended by her expressing her belief about same-sex unions outside the workplace, not because she had acted on her belief in the workplace, surely the EWCA would have found direct discrimination based on her religion or belief?
33
Indeed, Carolyn Evans has argued that the boundaries of the forum internum are hopelessly vague and, following Bahiyyih Tahzib, 34 suggests a number of unlawful interferences with the forum internum that, therefore, fall within the protection of Article 9(1). 35 These include, first and foremost, ‘discrimination on the basis of having, or not having, a certain religion or belief’. 36 Similarly, and recently, Goran Gunner has identified the principle of non-discrimination on the basis of religion under the heading, and as part of, his discussion on the forum internum. 37
This position links nicely with Wintemute's counterfactual example and argument regarding Ladele. After all, how could we reach a conclusion that Ms Ladele was discriminated against on the basis of her religion if she never expressed (as opposed to manifested, which she did in effect) her belief? For those concerned about the text of Article 9(1), Evans rightly clarifies that while Article 9 distinguishes between the right to hold a belief and the right to manifest it, ‘it is not clear that the first limb of Article 9 simply becomes irrelevant once some manifestation is in question’. 38 And it is here that I would suggest (again) a friendly amendment, to avoid the need to distinguish between different grades, or levels, of manifestation. Instead, I would argue, a neater way forward would be to embrace the notion of expression of belief (which, as noted, finds support in Phoenix, Ngole and in Wintemute's discussion) which does not spill over to the qualified protection of Article 9(2).
Some may observe, and protest, that the result of the analysis and argument above would suggest a peculiar conclusion, namely, that the expression of belief is granted stronger protection than freedom of expression in general. After all, under Article 10(2), the exercise of the right to freedom of expression may be subject to a range of ‘formalities, conditions, restriction or penalties’ that are ‘necessary in a democratic society …’. 39
One response would be simply to rely on the doctrinal framework, namely, that whilst Article 9(1) does not include any limits, Article 10(2) (like Article 9(2)) does. But beyond that, normatively, this distinction is perfectly defensible. Whilst Article 10(2) refers to all forms of expression, including those that are harmful, malign, idiotic, or, as in Miller, ‘opaque, profane or unsophisticated’, 40 Article 9(1) is concerned solely with expressions of belief that are not made in a way that does not exhibit sufficient objectionable traits to become ‘manifestations’ (more on that below). In other words, the narrower the scope of issues that are awarded protection, the stronger that protection may be.
3. Expression vs manifestation: Drawing the line
The previous subsection argued that the distinction between expression and manifestation of belief is a real one, that has, and should have, practical, legal, consequences. However, if that is the case, the stakes are raised for drawing a clear line between the two. Moreover, whilst the task is arguably somewhat more straightforward if the ‘manifestation’ is non-verbal, such as wearing a cross 41 or refusal to work on Sunday, 42 matters become more complicated when the manifestation is in the form of an … expression. On such occasions, exhibited most prominently in the long, and continuing, line of cases of social media pronouncements, the two become inexorably entangled. Consequently, from a legal perspective, freedom of belief (Article 9) and freedom of speech (Article 10), are both engaged. We referred to clear examples of such an entanglement above, when noting the cases in which the manifestation is a ‘pure’ expression of the belief, and nothing more. Such a case would be a letter to a major newspaper that expresses ‘concern about the introduction of self-identification for gender reassignment’, for example. 43
In between the two there is, as always, a grey area where the manifestation of belief necessarily includes an element of speech, and the former drives the latter. Such is the case, for example, when an employee engages in proselytisation (e.g., a nurse asking a cancer patient to sing Psalms with her) 44 ) or (re)posts on social media opinions that they seem to support. Thus, in Meade, 45 the claimant posted links to petitions calling for male athletes not to compete in female sports and to protect safe spaces; cartoons and satires in support of JK Rowling and ridiculing existing prison policies that allowed transwomen to be placed in women's only prisons. 46 In other words, in such cases the claimant will not make those statements if they do not hold particular beliefs, but the statements involved are more than a simple, straightforward, expression of said beliefs.
Recently, in Higgs, 47 the EAT helped us navigate this terrain. Unsurprisingly, this was a grey area case, which thus demanded the articulation of a clear(er) boundary. In Higgs, the claimant reposted on Facebook a post ‘warning’ parents about ‘Brainwashing our children’ through sex education in primary school, which included teaching ‘that same sex marriage is exactly the same as traditional marriage’. The disciplinary panel concluded that ‘on the balance of probability, this means that [the claimant] holds views that are discriminatory’, even though the claimant denied that she held such views. 48 The EAT noted here that there was a link between a ‘claimant's right to manifest her beliefs and to freedom of expression’. 49
In considering whether the manifestation was objectionable (so – when expression turns to unlawful manifestation), the EAT laid out nine considerations that were ‘likely to be relevant’ in the employment context:
50
the content of the manifestation; the tone used; the extent of the manifestation; the worker's understanding of the likely audience; the extent and nature of the intrusion on the rights of others, and any consequential impact on the employer's ability to run its business; whether the worker has made clear that the views expressed are personal, or whether they might be seen as representing the views of the employers; whether there is a potential power imbalance given the nature of the worker's position or role and that of those whose rights are intruded upon; the nature of the employer's business, in particular where there is a potential impact on vulnerable service users or clients; whether the limitation imposed is the least intrusive measure open to the employer.
An instrumental view of these indicia would see the first five (content, tone, extent, audience, intrusion on others) as helpful in devising the boundary not (only) between legitimate and illegitimate manifestation, but between expression of belief and manifestation of a belief, and thus between unqualified and qualified protection. In doing so, the criteria seek to offer a measured and balanced approach to the boundary between unqualified expression of belief, on the one hand, and the qualified protection of manifestation, on the other. The authoritarian control of employers, to which John Gardner 51 and Hugh Collins 52 alluded, is wide enough within the workplace, and should not extend to ‘thought control’. 53
Other indicia (e.g., power imbalance and the proportionality of the employer's response) seem to confuse matters, unnecessarily, by incorporating matters that are beyond the expression/manifestation into this list. They should, instead, be addressed separately, and we turn to them below.
4. The employer's response: ex-ante - handbooks and employment contracts
The aforementioned five indicia (content, tone, extent, audience, intrusion on others) seem reasonably comprehensive if their purpose is, collectively, to determine whether the manifestation itself is objectionable and thus unlawful. In this section, we move to address the wider context. In particular, we refer to the employer's prior, direct instructions on the matter. This element is, somewhat surprisingly, not only absent from the list, but also an under-addressed matter in scholarship, particularly in light of its presence in practice.
After all, in devising these considerations, the EAT clearly had in mind the employer's right – indeed, their duty - to provide a work environment that is safe, that enhances inclusivity and tolerance, and in which all feel welcome. As such, Oliver Wendall Holmes's observation, according to which ‘the petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman’
54
arguably stood the test of time only as an intriguing quip, rather than a normative constitutional position. Even within American jurisprudence, it has been held that (even) public employees do not relinquish their right to speak simply because they have accepted government employment.
55
Clearly, this principle is recognised in other jurisdictions as well. However, to what extent do matters become more complicated when an employer sets out, in their company handbook or an employment contract, the expectations in that regard? Examples of such clauses are becoming more common. Thus, David Mangan discusses a number of clauses with that effect, in which employers have assumed the role of ‘gatekeepers of online speech’.
56
In British Waterways v Smith,
57
the employer's policy listed as gross misconduct: The following activities [that] may expose BW and its employees, agents and contractors to unwarranted risks and are therefore disallowed: Any action on the internet which might embarrass or discredit BW (including defamation of third parties for example, by posting comments on bulletin boards or chat rooms)…
In Preece v JD Wetherspoon, 58 the claimant, a shift manager at a pub, was dismissed with immediate effect for gross misconduct after she suffered a torrent of abuse from two customers and their daughter and resorted to posting details of the exchanges, as well as offensive comments about the clients, on Facebook. The clients saw the posts and complained to the pub. The Employment Tribunal noted that, in accordance with its policy, the employer ‘reserved the right to take disciplinary action’ 59 if an employee posted content which, according to the employer's handbook, included ‘acts committed outside of work’ that would ‘be found to lower the reputation of the organization, staff or customers and/or contravene the company's equal opportunity policy’. 60 Consequently, the claim was denied.
Gosden v Lifeline 61 presents an interesting variation on the theme, as the claimant sent an offensive email, with arguably sexist and racist undertones, from his private (i.e., non-work) email to a friend's private email. The claimant worked for a charity which supported prison inmates dealing with drug addiction. He sent the email to a friend working for HM Prison Service, who then forwarded it through the prison computer system, where it was discovered. HMPS indicated that they would be reluctant to allow a person holding such views to work within the system (a matter to which we return below) and consequently the charity terminated the claimant’s contract. With respect to the current issue, the contract contained a provision stating that gross misconduct included ‘any act which is or is calculated to or may damage the company's reputation or integrity’. 62
It is important to note that, quite often, these cases relate to an employee's personal views and there is no real risk that an innocuous bystander would attribute them to the employer (criterion (vi) above); and, crucially, they routinely present significant inequality of bargaining power, which tribunals are happy to note when addressing provisions in contracts of employment (criterion (vii) above). Against this background, it is quite disappointing that tribunals uncritically quote these policies as starting points for the analysis. In that respect, the EAT in Smith is an exception, eloquently and persuasively noting that: The right of individuals to freedom of expression and freedom of belief, taken together, means that they are in general entitled to promote their religious or political beliefs, providing they do so lawfully. Of course, an employer may legitimately restrict or prohibit such activities at work, or in a work related context,
And yet, as Paul Wragg concludes, in quite a few cases ‘the substantive outcome was dictated purely by contractual principles’, 64 without reference to the rights at play.
What is the conclusion we should draw on this matter? In other words, what weight should be given to clauses such as those noted here in the analysis? The answer, we propose, is almost nothing. After all, we have noted the context of inequality of bargaining power, and are reluctant to recognise employees contracting away their statutory rights. 65 Against that background, it should be an even easier case to protect constitutional rights, such as freedom of speech and freedom of belief, in the face of a contractual provision.
However, an exception to the rule is found in cases in which individuals hold designated roles and often have signed contracts to that effect, in organisations that have a particular ethos. 66 Such was the case in Ali, 67 where a spokesperson for the Green Party was dismissed for (non-objectionable) expressions of gender critical views. Whilst the court found procedural unfairness in the proceedings, as a matter of substance it concluded, by reference to the specific contract that the claimant signed when taken up the post, that the party ‘could not … have been compelled Dr Ali as a spokesperson if … he expressed beliefs that were inconsistent with Party policy’. 68
It is important to note that this exception should not be viewed as a loophole through which employers can push their ‘values’ and thus demolish their workers’ right to express beliefs in a non-offensive manner. Such is the case, arguably, when a barristers’ chambers signs up to a charity's diversity scheme, 69 or when an arts and craft company professes its Christian identity and thus its objection to abortion rights. 70
5. The employer's response: ex-post - back to necessity
It is interesting to note that in Preece and in Gosden, the respective tribunals were guided by the parameters of s 98 ERA 1996 and the band, or range, of reasonable responses test. 71 This is a (notoriously) comfortable test for employers (‘[i]t will be considered within the ‘range of reasonable responses to dismiss for all but the most absurd reasons’), 72 and yet one that seems ill fit for the particular context. As noted, expressions of the sort that draw the outrage of clients, customers, service users and, consequently, employers are not of the sort that elicit sympathy towards the speaker. To take Gosden as a case in point, the Tribunal noted that the employer's manager ‘considered the e-mail to have been offensive, racist and sexist and was concerned that … the Claimant had apparently not found the content offensive’, 73 and that in itself was considered sufficient as grounds for dismissal. In other words, Patten seems right to conclude that not only employers, but also tribunals, ‘get drawn into making value judgments about different beliefs with the possibility that what gets protected are popular and fashionable beliefs, whereas less popular and less fashionable beliefs may fail to get protection’, moving to resolve the worthiness of the claim by ‘seeking to adjudicate on the underlying substantive validity of the belief itself’. 74 Against that background, without legal guardrails, a strong sanction seems, at the very least, eminently ‘reasonable’. And yet, this conclusion is unsatisfactory.
When searching for an alternative test, one need to look no further than the text of both Article 9(2) and Article 10(2). Both clauses restrict sanctions on manifestations of belief, and speech in general, to those that are ‘necessary’. I have objected to the incorporation of a ‘necessity’ test in a very different context, where no such textual anchor exists, and where its introduction has led to unjust consequences. 75 This, if you will, is the mirror image, in that the textual justification is clearly present, and the unjust consequences derive from the failure to refer to it and to apply it. The necessity test could be met, as noted on a number of occasions, if there is true risk (and not just an assumption) of reputational harm, 76 or even an inability to continue to serve clients or users. However, the jurisprudence concerning necessity also requires seeking avenues other than sanctions to address the issue, and within the possible sanctions, to turn to dismissal as a last resort.
6. Conclusion
This article has focused on the core challenge faced by employers when their employees express offensive beliefs outside of the workplace. It has been suggested that the right way to approach this challenge begins by disentangling its two constituent elements, namely, ‘expression’ and ‘beliefs’. In particular, if the ‘expression’ is a straightforward, factual delivery of the ‘belief’, then it enjoys unqualified, absolute protection under Article 9(1). In contrast, if the expression itself is objectionable, it should be assessed as a ‘manifestation’, thus moving out of the protection of Article 9(1) and should be considered within the ambit of Article 9(2) and Article 10. In that respect, it was argued that, as constitutional rights are at play, they should not be set aside through the relaxed prism of (in the UK context) the band of reasonable responses test. Instead, the reference to ‘necessity’ should be taken seriously.
A final thought, however, hovered above, and will have to be addressed at a later date. That is: do we truly believe in the absolute, unqualified right to belief? In a recent case, the EAT held that the claimant was justifiably dismissed for supporting the ‘[f]orcible deportation of Muslims from the United Kingdom’.
77
In an interesting passage, it explained: ‘it is only exceptionally and in extreme cases that an individual can be discriminated against by an employer (or a service-provider) merely
This situation merits honest engagement, but one which will have to wait for a future opportunity.
Footnotes
Declaration of conflicting interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author received no financial support for the research, authorship, and/or publication of this article.
