Empathy and the Equality Act 2010 in cases on religion or belief

This paper explores recent judicial approaches in cases under the Equality Act 2010 involving the manifestation by employees of protected beliefs, including gender critical beliefs. The paper argues that empathy, understood as perspective-taking, ought to guide decision-makers in the adjudication of cases involving manifestations of religion or belief and competing equality interests. It further argues that whilst recent judicial interpretations of direct discrimination in religion or belief cases disrupt traditional understandings of direct discrimination, they provide the opportunity to engage in an empathic approach to decision-making which is jurisprudentially sound. Despite this potential, the paper identifies concerns in relation to the practical application of this new trend in the jurisprudence and contends that some of these concerns could effectively be addressed by legislative intervention which would encourage the development of clear jurisprudence to aid litigants and the development of social norms for guiding behaviours in this contested field.