Enoch Burke’s ongoing disagreement with Wilson’s Hospital School has provoked much by way of media attention, public discourse and third-party proceedings. However, it is noteworthy that the issue of philosophical beliefs and conscientious objections at work has a long history. And – like Mr. Burke - there is no prospect that it will be going away any time soon.

Indeed, supporters of his disposition point to one’s right to ‘conscientious objection’ as enshrined in the EU’s Charter of Fundamental Rights, alongside the Irish Constitution’s provision, that also provides protection for the right to freedom of conscience. Whilst some sources are also quick to recall that a 7-year legal battle against a Belfast bakery for refusing to bake a cake emblazoned with the message ‘support gay marriage’ was lost at the European Court of Human Rights (ECHR) in 2022.

Conscientious objectors at work - across an array of issues – have been on the go for a long time. For example, in 1973 Ulster Unionists’ strike action succeeded in bringing down a power-sharing Northern Ireland Assembly (i.e. the Sunningdale Agreement). Long before that, on the same ‘national question’, many of Michael Collins’ activities were based upon sympathetic informants working in Dublin Castle and within the police force. Around the same time, in 1913, 20,000 workers engaged in a long-running and bitter dispute in Dublin led by James Larkin, on the subject of the right to trade union membership. More recently, a dispute over the processing of 2 grapefruits at a cash register in Dunnes Stores Henry St. branch kicked off a strike that ran for nearly 3 years, sourced in the wider  issue of racism at work.  This overlapped with the case of a teacher in New Ross – who refused to change her ‘lifestyle’, despite management instructions to do so. She was eventually dismissed - having become pregnant to a separated father. The High Court agreed with her employer, as the argument that her ‘private life’ was her own failed to sway the judge.

More recently, in 2018, the Health (Regulation of Termination of Pregnancy) Act was passed, with Section 22 thereof acknowledging the rights of conscientious objectors in the context of such terminations. Likewise, in 2024 the Joint Committee on Assisted Dying recommended that health workers’ right to conscientious objection involved in the process be legally protected. Of course, long before this announcement tensions rose in many workplaces, as conscientious objectors refused to be vaccinated against Covid. Issues are also surfacing at present amongst some members of the teaching profession, who are ‘horrified’ at the content of the Social Personal and Health Education school curricula. Whilst soccer enthusiasts will recall the BBC’s apology for its fracas arising from Gary Lineker’s much publicised political perspectives, that provoked the promise of an independent review of its social media guidelines. The same game also witnesses Irish international James McClean’s actions in refusing to wear the poppy, as he continues to stand separately from his teammates for the ‘minute’s silence’ on ‘Remembrance Sunday’. 

From a broader perspective on the same theme, it is notable that a recent worldwide Deloitte’s study found that ‘nearly nine in 10 Gen Zs and millennials say that .. they are increasingly likely to turn down work or employers that don’t align with their values’. That is, they’re looking for employers that share their commitment to making a positive impact on society, with diversity, equity and inclusion (DEI) being core values. In fact, many are unwilling to work where these principles aren’t prioritised, whilst international-research from Glassdoor tells us that 76% of job seekers across these generations assess an employer’s DEI efforts before accepting a job offer. The recent American survey finding, that 40% of young employees would consider quitting their jobs due to political differences with their boss, also serves to underline the growing tension between personal beliefs and workplace expectations (Harris Poll). Of course, America has quite a track record in this area, as reflected in:

• California, where there is legal protection for private sector employees engaging in political speech at work. Provided that their activities don’t interfere with job performance, this protection prohibits employers from disciplining or dismissing staff for their political activities;
   
• New York, which also protects employees' rights to engage in lawful recreational activities outside of work - including political activities - which cannot be grounds for discipline or dismissal;
   
• South Carolina: which allows employees to engage in political activities and also prevents employers from retaliating against them for their political beliefs or affiliations.
   

So, beyond those who choose to ‘whistle blow’ about their conscientious objections via the protected disclosures legislation, what are the legal precedents in this area and what can Irish-based employers do to prevent negative consequences?


Pertinent Precedents
 

In 2024, the Irish High Court ruled that ordering a soldier not to attend a particular public demonstration was unconstitutional, as the employer’s order failed the proportionality test and was a violation of the constitutional right to assemble peaceably and without arms (Bright v Minister for Defence & the A.G. [2024] IEHC 289). This precedent serves to confirm that there are some limits as to what an employer can demand of staff in respect of ‘off-duty’ conduct.
 
In 2024, the WRC held that an employee who published extreme views in relation to refugees on Facebook was unfairly dismissed. The employer argued that the comments constituted ‘hate speech’ under the relevant Act, noting that they were traced and reported back by a member of the public. The employee was then asked to remove them, but failed to do so. Significantly, in this case the WRC confirmed that ‘an employer has the right to dismiss where this is necessary to protect its business interests and reputation’ and ‘postings made on social media platforms outside of working hours may warrant disciplinary action up to and including dismissal; and that while every person has the right to freedom of expression, this right is not absolute’. However, in this instance the sanction of dismissal was deemed disproportionate. Notably, it didn’t help the employer’s case that they didn’t have a social media policy in place (Glynn v Carlow Dental - ADJ-00043734). In the context of social media use, it is also worth recalling that in 2023 a healthcare worker who liked and shared a video of an offensive song about murdered Co Tyrone woman Michaela McAreavey lost her claim of unfair dismissal at the Industrial Tribunal in Northern Ireland. 

In 2023, the WRC held that the respondent employer didn’t discriminate on the basis of religious beliefs, when it refused to interview an applicant that wasn’t vaccinated for Covid. The employer argued that – for health and safety reasons associated with its nursing home residents - the requirement for vaccination was a valid condition of employment. The WRC was satisfied that the complainant’s stance did not constitute a ‘religious belief’ as a protected characteristic under equality law, nor was it a manifestation of that belief (Ellis v Araglen Nursing Home - ADJ-00037224). This decision tallies with that in Bukauskaite v Laurel Lodge Nursing Home (ADJ-00036423) in the previous year, when the WRC concluded that the complainant had no basis for a discrimination claim on the grounds of religion.

In 2015, an evangelical Christian employee was dismissed by Tipperary Co. Council. He secured a €70,000 award for indirect discrimination. The Labour Court noted that the central issue in this case was whether the anti-discriminatory protection afforded to employees extends to the manifestation of religion. In this regard it referenced the aforementioned EU Charter of Fundamental Rights, whereby: ‘everyone has the right to freedom of thought, conscience and religion. This right includes freedom .. with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and observance’. Further explaining its decision, the Court pointed out that whilst ‘a restriction on holding or professing a religious belief, per se, cannot be justified, in an employment context there cannot be an unfettered right to engage in the practice or manifestation of religion’. That is, ‘logic dictates that the right must be subject to the rights of others and that it cannot be exercised in a way that is disruptive of the business’. The respondent employer argued that the claimant was dismissed for refusing to obey a legitimate instruction not to preach during working hours, as it could bring the Council into disrepute. However, the Court found that there was ‘no evidence .. tendered which could indicate that any of the people to whom the complainant spoke to about God or the Gospels considered his conduct disreputable or that it adversely affected their perception of the [Council]. Nor was there any evidence to show that the complainant’s evangelism impacted adversely on his capacity to perform the duties for which he was employed’. Furthermore, there was ‘nothing before the Court from which it could be held that its reputation was in any way imperilled by the complainant’s activities’ (EDA153).

In 2024, the WRC held that a (Jehovah’s Witness) worker at a residential care home was not discriminated against on the grounds of religion when she was asked to accompany a client to Mass. She argued that religious rights should be respected at work, as per her contract of employment. However, in failing the ‘prima facie’ test (as applied to equality cases), it was held that she was not being asked to attend or participate in the Mass and had suffered no sanction associated with her refusal (ADJ-00049555).
 
In 2021, a computer science teacher at a Tipperary school lost his appeal re.  the placing of a Blessed Virgin Mary statue in the school. His claim of indirect discrimination, victimisation and harassment was unsuccessful, as the claimant was deemed by the Labour Court to have failed to present evidence ‘in support of his complaint of indirect discrimination other than his own subjective feelings towards the statue in question and what he perceives it to represent’. Central to the Court’s decision was the ECHR’s ruling in 2011, that a crucifix on a wall is an ‘essentially passive symbol’, not comparable to didactic speech or participation in religious activities (EDA2124).
 
In 2023, the WRC held that a worker who was instructed to remove a chain with a religious symbol was not discriminated against by reason of her religion, as at the time she was told to remove the chain by her line manager, he didn’t know that there was a religious symbol held by the chain and he had already told several of the complainant’s colleagues to remove various pieces of jewellery for hygiene and safety reasons (ADJ-00042084).

In 2023, the OP v. Commune d'Ans Case C-148/22, the Court of Justice of the European Union (CJEU) held that exclusive neutrality policies in public administration don’t constitute indirect religious discrimination, provided that they are appropriate, necessary and proportionate in light of the context and interests at stake. This decision allows member states’ bodies a margin of discretion in deciding whether to ban religious clothing and symbols for all employees. Related thereto, in 2017, in another CJEU case involving a receptionist working for the G4S security co., it was held that the employer was entitled to prohibit an employee of Muslim faith from wearing a headscarf in the workplace and to dismiss her if she refused to remove it. Notably, the ability to enforce such a ban was deemed to be dependent on the employer having a policy of workplace neutrality in relation to religion and ideology, alongside other caveats on proportionality (Achbita v G4S [2017] CJEU Case C 157/15). In summary, this precedent enables employers to ban employees from wearing visible political, philosophical or religious symbols whilst at work.
 
In 2024, the WRC awarded €35,000 to an unfairly dismissed employee of Israeli-owned technology business WIX Online Platforms. This decision hung on procedural and loss mitigation matters, without consequential reference to the fact that it was sparked when the company was notified by numerous Israeli employees of the claimant’s online posts and comments (on LinkedIn), that described Israel as a ‘terrorist state’. Notably, there was no consideration here of the balance between an employer’s right to discipline an employee and their right to free speech (ADJ-00048434). 

What To Do?

According to an academic collective at Trinity College, Dublin, when it comes to dealing with ‘conscientious objectors’ at work, the right route is far from clear, due to ‘the complex interaction between statutory law, the Constitution, the common law, and European and international human rights law’ (Decision-Making in an Uncertain Time. Should You Always Obey Your Conscience?). So, given this complexity and the fact that discussions about political and moral topics cannot realistically be banned from the workplace, what does legal precedent and ‘best practice’ tell us? How can an employer ensure that such matters don’t boil over, gain unwelcome media attention, prove costly to litigate and upset all-important workplace morale and teamwork?

• Policies: Pre-empt problems via appropriate policies (e.g. on dignity at work, social media, equality/inclusivity, unacceptable workplace behaviours, notice board usage and off-duty conduct). These policies should be explicit about forbidden activities that create a hostile work environment or disrupt operations, incl. political/hate speech and demonstrating or petition-making at work. Related thereto, it may also prove beneficial to include restrictions on the display of politically charged material, alongside a dress code policy that prohibits political attire.
   
• Informal & Formal Approach: Consider the option/potential of the ‘informal’ approach to defusing conflict (incl. progressing to mediation), alongside the existence of readily available and internally publicised conflict resolution procedures, that explain how staff can report an incident (i.e. should sensitive or politically-charged incidents surface, an employee be in breach of policy or behave inappropriately).
   
• Training: Ensure the provision of (re-)training and education on relevant policies, with practical inputs that encourage all to show respect when discussing politically or morally charged subjects, whilst avoiding the promotion of personal beliefs. Though employees may well be informed about such issues – and it is acceptable to share an opinion when asked - it’s also very important to avoid offending colleagues.
   
• Job Descriptions: The existence of appropriate job descriptions may well prove crucial and consequential, in the event that there is a conscientious objection to fulfilling the role or some key component(s) thereof.
   
• Consult & Consider: When dealing with ‘philosophical’ or ‘conscientious objection’ type issues at work, proceed with considerable caution (rather than a ‘knee-jerk’ response). Assess each scenario on its own merits/demerits and act only after considered consultation with senior personnel, legal experts and the organisation’s media/P.R. staff, as a rushed reaction may well become a rued result! Given the vast array of potential ‘philosophical belief’ and ‘conscientious objection’ type topics that can surface at work, one would do well to review the organisation’s policies, perspectives and pertinent (legal) precedents. Given their complexity amidst changing perspectives, one would also do well to appreciate and reflect upon the potential (legal, reputational and other) fall-out(s) from the various response options available to the organisation (i.e. ‘look right, look left and look right again … and then think about what may be around the coming corners’!).

Perhaps the best advice with regard to how to treat this tricky topic comes from the ‘H.R. Advice’ specialists, who recommend that:

‘ .. when addressing politically-charged incidents in the workplace, it is essential to investigate thoroughly and fairly. Collect all relevant facts and perspectives before making any decisions. Interview everyone involved to ensure a balanced view and maintain confidentiality to protect privacy and build trust. Document all findings meticulously to ensure transparency and accountability …’