Last week reports came out in the press that Paris Saint-Germain's (PSG) player, Idrissa Gueye, refused, on the grounds of his faith, to play in a football match in order to avoid wearing a rainbow shirt. This shirt was being worn by all the team in support of International Day Against Homophobia, Biphobia and Transphobia.
PSG manager, Mauricio Pochettino, told the media that Gueye, a practising Muslim, withdrew from the match for "personal reasons". Gueye also missed the same game last season that was supporting the same cause.
Following Gueye’s prominent absence, a number of other footballers have pledged their support for Gueye’s stance and hashtag “We are all Idrissa” trended on Twitter. This comes in stark contrast to many journalists and football fans condemning his behaviour and the pride expressed by the club in wearing the shirt.
Although this case has made headlines, it is not a novel issue for employers. Employers and the courts have been grappling with how to balance competing rights between potentially conflicting protected characteristics (principally religion and sexual orientation) over a number of years. In a high profile sporting context, the legal and reputational risks are magnified further. Indeed, high profile figures in professional sport are perhaps more likely to take a public stance on issues because they are in the spotlight. Some comparisons and parallels can perhaps be drawn with recent examples of footballers refusing to take the knee in support of the Black Lives Matter movement.
Analysis - a UK employment law perspective
Under the Equality Act, all religions are recognised as a protected characteristic; an employee’s right to hold a particular religious belief is unqualified. It is therefore protected by law even if that belief entails opposition to homosexuality and trans rights. However, the right to manifest that belief – meaning how it is expressed, demonstrated and observed - is not absolute. Manifestation of the belief in the workplace must be balanced against other interests, including the impact on others and their legal rights.
The current situation brings this kind of conflict into focus, and raises a tricky issue of whether refusing to take part in a diversity and inclusion initiative, which is not a usual part of an employee’s role, can be seen as the individual manifesting their belief in an inappropriate (and potentially unprotected) way.
These kind of disputes in the workplace often come to light when a policy or practice applied uniformly is alleged to have a disproportionately adverse impact on those with particular religious beliefs. In such cases the question for the employer is whether the policy or practice can be objectively justified. If it cannot, the policy or practice will be indirectly discriminatory.
Many of the reported cases in this area focus on dress policies and the right to wear religious attire at work. Whilst this is the inverse situation – an employee is refusing to wear particular clothing for religious reasons – it still concerns an individual’s opposition to a dress code on religious grounds and arguably the same principles regarding justification would apply.
But looking at the heart of the matter, the current situation could be said to be different. The rainbow football shirt is not the employee’s usual uniform - it is part of a particular initiative by the club that the employee does not want to take part in. It is possible that asking an employee to wear a uniform that supports LGBTQ+ rights may amount to a reasonable management instruction on the basis that the employer requires employees to conform to its diversity and inclusion policy or promote its values. Arguably an employee’s refusal to participate in this expression of support could therefore be considered misconduct. Given the potentially clashing rights and protections in play, however, this is a path fraught with controversy and risk, especially in the high-profile world of football with fans, the media and sponsors all looking on.
This is an enormously complicated area of law, where employers are often placed in an impossible position, but such situations will continue to arise and will continue to make headlines.
For further background to the story and to see an image of PSG's rainbow shirt, please see this BBC article.
If you would like any advice on any issues raised in this article, please speak to your regular Lewis Silkin contact.