An Objectionable Manifestation of Beliefs?

‘Religion or belief’ is a protected characteristic under the Equality Act. It applies to persons who hold particular religion or belief, and a reference to a religion or belief includes a lack of a religion or belief. Direct religion or belief discrimination occurs where, because of a religion or belief, a person treats another less favourably than they treat or would treat others. Harassment related to a religion or belief occurs where a person engages in unwanted conduct related to the relevant religion or belief, which has the purpose of violating another person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

In Higgs v Farmor’s School, Mrs Higgs, a Christian, was employed by Farmor’s School as a pastoral administrator and work experience manager. She was dismissed for gross misconduct further to some things she posted on Facebook criticising the nature of sex education in schools, particularly the teaching of same sex relationships, same sex marriage and ‘gender fluidity’.

The school felt that people who saw the Facebook posts might conclude not only that Mrs Higgs had a strong opinion that these things should not be taught in schools, but also that she was hostile towards the LBGTQ+ community and, in particular, towards transgender people.

Mrs Higgs brought claims against the school for direct discrimination and harassment on the grounds of her Christian beliefs.

An employment tribunal (‘ET’) dismissed Mrs Higgs’ claims, finding that she was not subjected to a disciplinary process and dismissed because of her Christian beliefs, but instead because of the school’s concerns that people would see her as having homophobic and transphobic views because of her Facebook post. Mrs Higgs appealed against the ET’s decision.

The employment appeal tribunal (‘EAT’) noted that the ET had been required to decide Mrs Higgs’ claims in accordance with the European Convention on Human Rights, specifically Article 9 (freedom of thought, conscience and religion) and Article 10 (freedom of expression).

Accordingly, the ET should have first determined whether Mrs Higgs’ actions amounted to a manifestation of her beliefs. This involves asking whether there is a sufficiently close and direct nexus between the conduct and the beliefs. Here, the question would be whether there was such a nexus between Mrs Higgs’ Facebook posts and her Christian beliefs.

If the ET decided that Mrs Higgs’ actions amounted to a manifestation of her beliefs, it then needed to ask the “reason why” question: whether the school’s actions in disciplining and dismissing Mrs Higgs were because of or related to this manifestation of her beliefs, or whether they were in fact a response to Mrs Higgs manifesting her beliefs in a way to which objection could justifiably be taken. Any restriction placed on a manifestation of beliefs must be prescribed by law, pursue a legitimate aim and be necessary in a democratic society.

To determine whether or not a manifestation of beliefs is ‘objectionable’, it is necessary to carry out a proportionality assessment.

The EAT held that the ET had not engaged with the question of whether the school’s actions amounted to a manifestation of her beliefs. The school’s concerns, on which the ET based its decision, were not relevant to this first element. The EAT therefore allowed the appeal but remitted the case for determination. Whilst the EAT established that the Facebook posts had a sufficiently close and direct nexus with Mrs Higgs’ beliefs, such as to amount to a manifestation of those beliefs, they said that an employment tribunal must now determine (1) whether the measures adopted by the school were prescribed by law; and, if so, (2) whether those measures were necessary in pursuit of the protection of the rights, freedoms or reputations of others. It will be interesting to hear what the tribunal decides.

Helpfully, the EAT set out some basic principles as guidance for the approach to be taken when assessing proportionality in cases where there is interference with the rights of freedom of religion and belief and freedom of expression:

• The foundational nature of these rights must be recognised, even when the belief in question is not a popular or mainstream belief and even if its expression may offend.
• These rights are, however, qualified.
• Whether a limitation or restriction on these rights is objectively justified will be context specific.
• In an employment context, it will be necessary to ask: (i) whether the objective the employer is seeking 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 could be imposed; and (iv) whether, when balancing the severity of the limitation on the rights of the individual concerned against the importance of the objective, the former outweighs the latter.
• In answering these questions, regard should be had to: (i) the content of the manifestation; (ii) the tone used; (iii) the extent of the manifestation; (iv) the individual’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 individual has made clear that the views expressed are personal and whether there is any reputational risk for the employer; (vii) whether there is any potential power imbalance; (viii) the nature of the employer’s business; and (ix) whether the limitation imposed is the least restrictive measure the employer could have chosen.

This case is useful in that it provides some guidance on how to approach conflicting beliefs in the workplace. It reminds employers that each such scenario should be considered individually with decisions being based on the relevant context, taking into account what would be a proportional response.

If you would like advice on the topic of religion or belief discrimination, or on the handling of a disciplinary process or discrimination claim, or you would like our assistance with drafting or reviewing equal opportunities or other internal policies, please get in touch at [email protected].