421: When might it be proportionate to limit an employee’s manifestation of a religion or belief?

Employers cannot discriminate against employees because of their religion or belief. However, it is not unlawful to take action where an employee has manifested that religion or belief in an inappropriate or objectionable manner. Assessing whether a belief is being manifested inappropriately will usually involve balancing the employee’s rights to freedom of belief and freedom of expression against the legitimate interests of the employer and the rights and freedoms of others. Dealing with clashing views and beliefs can be difficult, as illustrated by recent cases on the conflict between protected gender critical and religious beliefs and LGBT+ rights. In Higgs v Farmor’s School, the EAT has provided some welcome guidance on how to approach conflicting rights and freedoms in the workplace although the re-appeal decision is still to come.

Higgs v Farmor’s School

Mrs Higgs, a Christian, worked in a secondary school as a pastoral administrator and work experience manager. A parent complained to the school about her Facebook posts which were critical of schools teaching that gender, and same-sex relationships and marriage, are matters of choice rather than biology. Following disciplinary proceedings, Mrs Higgs was dismissed for gross misconduct on the basis that the inflammatory and extreme language and content of her posts breached the school’s Code of Conduct and potentially harmed its reputation. She brought claims of direct discrimination and harassment on grounds of her beliefs.

It was accepted that Mrs Higgs’ beliefs were protected under the Equality Act 2010. However, the Employment Tribunal held that the school had not dismissed her because she held these beliefs, but as a result of the ‘florid and provocative language’ used in her Facebook posts which could lead a reader to conclude that she held transphobic or homophobic views.

Re-appeal allowed

The EAT has now upheld an appeal by Mrs Higgs, agreeing that the Tribunal had not applied the correct legal analysis to the facts of her claim. In particular, it had failed to properly consider whether her dismissal was because of, or related to, the way in which she had manifested her beliefs. Given that there was a close link between Mrs Higgs’ Facebook posts and her protected beliefs, the Tribunal should have undertaken a proportionality assessment of the school’s decision to dismiss her and the interference with her fundamental rights to freedom of belief and expression. Mrs Higgs’ case will now go back to the Tribunal to make this assessment and decide whether her discrimination claim can succeed.

The EAT also provided some helpful guidance on how to assess the proportionality of any interference with the right to freedom of belief and expression. Relevant factors include:

• the content, tone and extent of the employee’s statement or action;
• the likely audience; the extent and nature of the intrusion on the rights of others;
• the impact on the employer’s ability to run its business;
• whether the employee has made it clear that the views are personal;
• the risk of reputational damage; and
• any power imbalance between the employee and their employer.

Commentary

Although the EAT stressed that cases involving the right to freedom of religion or belief and freedom of expression will be fact-specific, the general guidance will be useful where employers are faced with the tricky task of balancing conflicting rights in the workplace.

It will be interesting to see how the Tribunal applies its guidance to this case, where the interests of the school, its pupils, parents and the wider community will need to be balanced with Mrs Higgs’ rights.

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