Protection of belief and manifestation of belief; walking the tight rope

Sally Bird, Partner

One of the most difficult issues that employers can face in practice is trying to resolve the situation where an employee’s protected belief and expression of views relating to that belief comes into conflict with the rights and beliefs of others and creates division and conflict in the workplace.

Religion or belief is a protected characteristic under the Equality Act 2010, but managing the manner in which employees manifest and express their beliefs both inside and outside of the workplace can be a very difficult balancing act.

The Court of Appeal has recently handed down its highly-anticipated judgment in the case of Higgs v Farmor’s School, a well-publicised case involving the dismissal of a Christian employee for posts she had made on her personal Facebook page.

The Claimant was employed by a secondary school as a pastoral administrator and work experience manager. The school dismissed her for gross misconduct due to posts that she made on her personal Facebook page which criticised the nature of sex education in primary schools and the teaching of gender fluidity in particular, so her criticism focused on transgender issues. The employee had posted messages, mostly quoted from other sources, objecting to Government policy on sex education in primary schools because of its promotion of “gender fluidity” and its equation of same-sex marriage with marriage between a man and a woman.

Based on the earlier decision in the well-known case of Forstater v GCD Europe, the parties did not dispute that a belief that gender is binary and that same-sex marriage cannot be equated with marriage between a man and a woman are beliefs which are protected by the Equality Act.

The school took the view that a person reading the posts might conclude that the employee not only felt strongly that gender fluidity should not be taught in schools but was also hostile towards the LBGTQ+ community and transgender people in particular.

Following her dismissal, the employee brought claims of direct discrimination and harassment on the ground of her protected beliefs. Belief can include a lack of belief and here the employee relied on her lack of belief in gender fluidity and that a person can change their biological sex, and her belief that marriage is an institution between a man and a woman.

The employment tribunal found that whilst the employee’s beliefs were protected under the Equality Act, her dismissal was not because of her beliefs but because of the school’s concern that through her manifestation of her beliefs, she would be perceived as holding homophobic and transphobic views.

The role of Human Rights Laws

The employee appealed against this decision, and the EAT found that the tribunal had made a mistake in rejecting her claim for direct discrimination.

This was because there was a sufficiently close link between the employee’s conduct and her beliefs such that the Facebook posts amounted to manifestations of her beliefs and engaged rights under the European Convention on Human Rights (being under Article 9 the right to freedom of thought, conscience and religion and Article 10 the right to freedom of expression). In view of this the EAT found that the tribunal should have carried out a proportionality assessment to determine whether the school’s actions in disciplining and dismissing the employee 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. This perfectly illustrates the fine lines that are drawn in these cases –how is an employer able to determine  the extent to which an employee can manifest their protected beliefs through statements or posts and when this will overstep the mark making the taking of action due to the manner in which the employee goes about it one that will be justified?

The EAT ordered the case to be heard by the tribunal, but the Employee appealed to the Court of Appeal that her claim should have been upheld because her treatment-dismissal- was not an objectively justifiable response to her having made the posts.

The Court of Appeal found in favour of the employee and allowed the employee’s appeal, and in doing so carried out a review of the previous cases in this difficult area, and the legislation. It agreed that the tribunal should be bound to find that the employee’s dismissal was not objectively justified and amounted to unlawful discrimination.

The court’s reasoning was not that the school was not entitled to take the view that the language used was offensive to gay and/or trans people -for example by the employee’s use of the term “the LGBT crowd” in the context of sex education in school. Rather it decided that her dismissal was a disproportionate response -and that this was unquestionably the case. Whilst the language used was “objectionable” it was not “grossly offensive”.  To describe the promoters of education about gender fluidity as the LGBT crowd did not appear to be intended to incite hatred or disgust for gay or trans people but was one of “a series of derogatory sneers alongside comments about far-left zealots and liberal school systems”. They were a long way from being a direct attack on homosexuality for example.

The employee had reposted some messages from others and told the school that she did not agree with the language used -and the court considered that this was relevant to the degree of culpability. The court also found that there was no evidence of damage to the school’s reputation -the concern was about potential damage, and the school accepted that there was no possibility that the readers of the posts would consider that they were the views of the school, given that they were made on a personal Facebook account, in the employee’s maiden name, with no mention of the school.

The court was very strong in its view that the punishment did not fit the crime, stating that dismissal was not even arguably a proportionate sanction for the conduct. This was a long-serving employee, about whose work there was no complaint, and the view taken was that a less severe sanction would have been more appropriate.

So what points can be drawn from this?

1. The dismissal of an employee just because they have expressed a religious or other protected belief to which the employer (or a third party with whom it wishes to protect its reputation) objects will constitute unlawful direct discrimination within the meaning of the Equality Act. Direct discrimination cannot be justified.
2. However, if an employee is dismissed not simply due to the expression of the belief itself (or third parties’ reaction to it) but because of something objectionable in the way in which it was expressed, determined objectively, then the dismissal will be lawful if, but there is a form of defence of justification if the employer can show that dismissal was a proportionate response to the objectionable feature. So if the belief was expressed in extreme or offensive terms, designed to provoke hatred -and this is to be considered objectively- then an employer is not hamstrung by the lack of a justification defence.
3. It was relevant here that the employee’s actions were done in her personal capacity outside of the workplace, and the employer may well have had a different outcome if she had manifested these beliefs in the workplace to her colleagues or to pupils.

This is a complex and highly topical area of the law, where employers are walking a tight rope. Our team has significant expertise in advising on these types of cases.