In claims for discrimination related to manifestation of a religion or belief, does a tribunal have to decide whether an employer’s actions were motivated only by the objectionable manifestation of a religion or belief, rather than the belief itself?
Yes, ruled the Employment Appeal Tribunal (EAT) in the recent decision of Higgs v Farmor’s School [2023].
Facts
The claimant, employed by the school as an administrator/manager, was dismissed for gross misconduct after the school received an external complaint about Facebook posts that she had made criticising the nature of sex education in school and, in particular, the teaching of ‘gender fluidity’.
The school considered that someone reading the posts might conclude that Ms Higgs felt strongly that gender fluidity should not be taught in schools and was hostile towards the LGBTQ+ community.
Ms Higgs brought claims of direct discrimination and harassment on the ground of her protected beliefs, including her lack of belief in gender fluidity and that a person can change their biological sex.
The Employment Tribunal (ET) dismissed her claims, finding that, whilst her beliefs were protected under the Equality Act 2010, she was dismissed not because of her beliefs but because of the school’s concern that she would be perceived as holding homophobic and transphobic views.
Ms Higgs appealed the decision, and the EAT allowed her appeal, remitting the case to the ET for further determination, including whether the dismissal was a proportionate response to Ms Higgs’ manifestation of her beliefs.
Law
Section 13 of the Equality Act 2010 (the EqA) states:
(2) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.
Under Section 26 of the EqA:
(1) A person (A) harasses another (B) if:
a) A engaged in unwanted conduct related to a relevant protected characteristic, and;
b) the conduct has the purpose or effect of:
- violating B’s dignity or
- creating an intimidating, hostile,
- degrading, humiliating or offensive environment for B.
The rights conferred by the European Convention on Human Rights (ECHR) considered included Article 9 (freedom of thought, conscience and religion), and Article 10 (freedom of expression).
Decision
The EAT noted that the ET was required to determine Ms Higg’s claim in accordance with rights conferred by the ECHR, including Articles 9 and 10. It should have determined whether Ms Higg’s actions amounted to a manifestation of a belief, which involved asking whether there was a sufficiently close and direct nexus between her conduct and her beliefs.
If there had been a restriction on manifestation of belief or freedom of expression, that restriction would have to be prescribed by law, pursue a legitimate aim, and be necessary in democratic society.
The EAT noted that protection for belief is not limited to holding the belief without the ability to express those beliefs. The protection also covers the lawful manifestation of the beliefs.
Ms Higgs’ rights to freedom of expression meant that any restriction on how the beliefs were expressed must still be proportionate, even if the school thought Ms Higgs’ views may offend or shock others.
While any objective justification of a restriction is always dependent on context, the ET in this case had not made findings of fact as to whether in this case the limitations on expressing the beliefs were justified.
The EAT on appeal held that the ET’s findings on the reasons for the school’s actions did not follow the correct approach. The ET had erred in that it should have undertaken a proportionality assessment to determine whether the school’s actions in disciplining the claimant were because of, or related to, the manifestation of her protected beliefs, or were instead due to a justified objection to the manner of that manifestation.
Comment
Carla Codona, Trainee Solicitor in our Employment team comments:
“This EAT decision is a reminder that employers should not decide to discipline or dismiss employees for manifesting a protected belief simply on the basis that it may be offensive to others. Doing so will risk discrimination, unless it can be shown that the action is both necessary and proportionate.
“This case set out basic principles to help both employers and employees navigate difficult situations and competing rights, taking into account the protections afforded to the right to freedom of expression.
“If you require assistance with handling employees who are expressing views on social forums, and are contemplating starting an investigation or disciplinary proceedings, please contact us and we can provide advice through each step of the process.”