Facts
Ms Higgs worked as a pastoral administrator and work experience manager at Farmor's School. Following complaints received by the School relating to Facebook posts in which Ms Higgs criticised the nature of sex education in schools, with a particular concern in relation to gender fluidity, Ms Higgs was suspended and, after a disciplinary investigation, subsequently dismissed. One of the posts concerned stated "PLEASE READ THIS! THEY ARE BRAINWASHING OUR CHILDREN!...".
Ms Higgs claimed the actions of the School amounted to either direct discrimination because of religion or belief, or to unlawful harassment related to religion or belief. Ms Higgs is a Christian but it was not her case that she had been directly discriminated against, or harassed, for her Christianity per se – rather it was her case that the treatment was as a result of her beliefs. Ms Higgs' beliefs (or lack thereof) included a lack of belief in gender fluidity and a lack of belief that someone could change their biological sex/gender.
Employment tribunal
The tribunal dismissed Ms Higgs' claims. Although Ms Higgs' beliefs were protected under the Equality Act 2010, the tribunal concluded that the measures taken by the School had been due to its concerns that someone reading Ms Higgs' posts could reasonably (and in fact did) conclude that she held wholly unacceptable views. The reason for its actions was not because of, or related to, Ms Higgs' protected beliefs.
Ms Higgs appealed to the Employment Appeal Tribunal ("the EAT").
The EAT
Allowing the appeal the EAT found that the tribunal had failed to engage with the important question of whether there was a close or direct nexus between Ms Higgs' Facebook posts and her protected beliefs. In determining why the School had acted as it had, the tribunal was required to assess whether those actions were prescribed by law and were necessary for the protection of the rights and freedoms of others, recognising the essential nature of Ms Higgs' rights to freedom of belief and freedom of expression. It was crucial that the tribunal carry out a proportionality assessment to determine whether the School's actions were because of, or related to, the manifestation of Ms Higgs' beliefs, or were in fact due to a justified objection to the manner of that manifestation – the tribunal had failed to engage with this question. The EAT concluded that the tribunal had not followed the correct approach.
As the tribunal had erred in its approach to the determination of the "reason why" question the case would be remitted for re-hearing on this issue.
The EAT recognised the danger of laying down general guidelines in cases such as this and emphasised that each case is fact specific. Nevertheless the EAT went on to lay out the basic principles that will underpin the approach which should be adopted when assessing the proportionality of any interference with rights to freedom of religion and belief and of freedom of expression:
(1) The foundational nature of the rights must be recognised: the freedom to manifest belief (religious or otherwise) and to express views relating to that belief are essential rights in any democracy, whether or not the belief in question is popular or mainstream and even if its expression may offend.
(2) Those rights are, however, qualified. 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. Where such limitation or restriction is objectively justified given the manner of the manifestation or expression, that is not, properly understood, action taken because of, or relating to, the exercise of the rights in question but is by reason of the objectionable manner of the manifestation or expression.
(3) Whether a limitation or restriction is objectively justified will always be context-specific. The fact that the issue arises within a relationship of employment will be relevant, but different considerations will inevitably arise, depending on the nature of that employment.
(4) It will always be necessary to ask: (i) whether the objective the employer seeks to achieve is sufficiently important to justify the limitation of the right in question; (ii) whether the limitation is rationally connected to that objective; (iii) whether a less intrusive limitation might be imposed without undermining the achievement of the objective in question; and (iv) whether, balancing the severity of the limitation on the rights of the worker concerned against the importance of the objective, the former outweighs the latter.
(5) In answering those questions, within the context of a relationship of employment, regard should be had to: (i) the content of the manifestation; (ii) the tone used; (iii) the extent of the manifestation; (iv) the worker’s understanding of the likely audience; (v) 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; (vi) whether the worker has made clear that the views expressed are personal, or whether they might be seen as representing the views of the employer, and whether that might present a reputational risk; (vii) 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; (viii) the nature of the employer’s business, in particular where there is a potential impact on vulnerable service users or clients; (ix) whether the limitation imposed is the least intrusive measure open to the employer
Comment
This is yet another case where the EAT has had to balance competing interests on a subject that provokes strong feelings from some. The basic principles laid out by the EAT should be a helpful point of reference for employers when grappling with competing beliefs.
Employers should ensure that relevant policies and procedures are kept up-to-date to help educate the workforce on what behaviours are and are not acceptable. Training should be used to help re-inforce key messages.
As always, creating a workplace culture where both inclusion and diversity are prioritised will help mitigate the risk of future disputes.
If we can be of any assistance with regard to the issues raised in this update please do not hesitate to get in touch.
