By Hilary Larter & Ceri Fuller
|Published 10 July 2023
The EAT has upheld an appeal against an employment tribunal's decision that an employee was not directly discriminated against or harassed because of her protected gender critical beliefs, and has set out useful principles which will help employers in balancing conflicting rights in the workplace.
Under EU law, individuals have the right to freedom of religion and belief and the right to freedom of expression. This means that individuals have the right to hold a belief and to manifest, or express, their belief to others, even where others may find those beliefs offensive. These rights are qualified: they can be limited by law, to meet a legitimate aim, and where it is necessary to limit them in a democratic society.
Employers face difficult decisions when balancing the rights of employees who express protected beliefs which clash with other protected beliefs. The law has been clear for some time that an employer's actions against an employee who has manifested a protected belief will not amount to direct discrimination if the reason for the employer's action was not the belief itself but the inappropriate manner in which the employee manifested their belief. This case effectively sets out a blueprint for employers to following when determining if their actions are a response to the manner in which the belief was manifested or to the belief itself.
Mrs Higgs is a Christian who worked as a pastoral administrator and work experience manager at Farmor's School. Her case was not that she had been discriminated against or harassed because she is a Christian but because of her gender critical beliefs.
A parent emailed the headteacher complaining about a post on Mrs Higgs' personal Facebook page about relationship education in primary schools which, the parent said, demonstrated that Mrs Higgs held homophobic and prejudiced views against the LGBTQ+ community. Mrs Higgs had reposted someone else's post about the teaching in schools on same-sex relationships, same-sex marriage and gender being a matter of choice. Mrs Higgs added the words "PLEASE READ THIS! THEY ARE BRAINWASHING OUR CHILDREN!" and exhorted readers to "Please sign this petition, they have already started to brainwash our innocent wonderfully created children and its happening in our local primary school now". Her posts did not mention the school.
Ms Higgs was suspended and, after a disciplinary investigation and an appeal, dismissed for gross misconduct. The school said that she had breached its code of conduct which prohibited illegal discrimination and her social media posts which could bring the school into disrepute. The school found that, as a result of the Facebook posts (including "inflammatory and quite extreme" language") the parent complaining had taken offence, which was "clear evidence of discrimination…in the form of harassment" and that there was a potential risk of harm to the school's reputation.
Mrs Higgs claimed in the employment tribunal that, in suspending and dismissing her for her beliefs, the school had directly discriminated against her because of her protected beliefs or harassment flowing from her protected beliefs. The tribunal agreed that her beliefs (including the lack of belief that gender can be fluid and the lack of belief that an individual can change their biological sex or gender) were protected by discrimination legislation. The tribunal also held that Mrs Higgs had no real expectation of privacy in relation to her Facebook posts and that the school had been entitled to take action in relation to them, on the basis that “anyone posting on such a platform as Facebook effectively loses control of their posts, at least when a large number of people can access them” However, the tribunal found that the school had sacked her because of its concerns that someone reading her posts could reasonably assume that she held homophobic and transphobic views (an accusation which she denied) and that the reason for her dismissal was neither because of nor related to her protected beliefs so she had not suffered discrimination.
Mrs Higgs appealed to the EAT, which upheld her appeal. The EAT held that the tribunal had not engaged with the question of whether the school's action was because of, or related to, the manifestation of Mrs Higgs' beliefs. To determine whether Mrs Higgs' actions were a manifestation of her beliefs, the tribunal should have considered whether there was a sufficiently close connection between Mrs Higgs' Facebook posts and her protected beliefs. It had not done so. If the tribunal had determined that the posts were to be viewed as a manifestation of her beliefs, it had then to ask whether the schools' treatment was because of, or related to the manifestation of her beliefs or because she had manifested her beliefs in a justifiability objectional way. In answering this question, it should have carried out a proportionality assessment and been satisfied that the employer's actions were prescribed by law.
The EAT found that the tribunal had not carried out a proportionality assessment, and the case was remitted to the employment tribunal to do so.
Emphasising that cases like this will always be fact specific, the EAT set out some principles which will help employers who are assessing whether to take any action that might interfere with an employee's right to freedom of religion and belief and the freedom of expression. These principles are:
1. The foundational nature of these 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 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.
This case underlines the importance for employers in pausing and taking a measured response when dealing with this issue, which often creates heated debate. It also provides needed guidance for employers on what to consider when deciding whether to interfere with the rights of freedom of religion and belief and freedom of expression where employees have expressed beliefs that offend others.
Emphasising that any discussion about these issues should be carried out with dignity and respect, even when there is disagreement, and setting clear rules for workplace behaviours will also be key in ensuring disagreements don't give rise to successful discrimination claims for those on both sides of the debate.
It will be interesting to see how the employment tribunal conducts the proportionality test outlined above at the remitted hearing, and we'll update you when the judgment is issued.
Mrs Kristie Higgs v (1) Farmor's School; (2) The Archbishops' Council of the Church of England
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