Employment Law Cases

Religion or belief: manifestation of and assessing proportionality

Employers cannot discipline an employee for manifesting a protected belief because someone else may be offended - unless they have also considered whether the action is both necessary and proportionate.

Background

Ms Higgs shared two posts via her private Facebook account which openly criticised teaching about LGBTQ+ relationships at her son’s Church of England primary school and encouraged other Facebook users to sign a petition against plans to make ‘relationship education’ compulsory for young children. The headteacher received an anonymous complaint that described the posts as being ‘homophobic and prejudiced to the LGBT community’. Ms Higgs was suspended from her role as pastoral administrator and work experience manager. An investigation was then followed by a meeting at which Ms Higgs alleged that she was questioned for six hours in an ‘intimidating’ manner and where her Facebook posts were likened to ‘pro-Nazi’ views. Following the meeting, Ms Higgs was dismissed from her role for gross misconduct.

Ms Higgs brought a tribunal claim for direct discrimination and harassment on the grounds of religion or belief, relying on her lack of belief in either gender fluidity or same-sex marriage, as well as her belief in marriage as being between a man and a woman. The tribunal dismissed her claims, finding that while her beliefs were protected under the Equality Act, she’d been dismissed not because of those beliefs but rather because of the school’s concern that she would be perceived as holding homophobic and transphobic views. Ms Higgs appealed.

EAT decision

The appeal was upheld.

Legal protections aren’t limited to allowing people to hold specific beliefs. Article 9 (freedom of thought, conscience and religion) and art. 10 (freedom of expression) of the European Convention on Human Rights gives people a right to ‘manifest’ those freedoms as well. Manifest in this context means making their beliefs known to others through their actions or words. However, these rights can be limited or restricted by law, to meet a legitimate aim, and where it’s necessary in a democratic society.

The tribunal had failed to consider the nexus between the Facebook posts and Ms Higgs’ protected beliefs. The protection for belief is not limited to merely holding the belief without the ability to express those beliefs - the protection also covers the lawful manifestation of the beliefs. If the suspension, disciplinary action and dismissal were connected to the manifestation of a protected belief, this could therefore be unlawful discrimination, unless Ms Higgs had manifested her beliefs in such a way that her employer could justifiably object. Ms Higgs’ right to freedom of expression meant that any restriction on how the beliefs were expressed must still be proportionate, even if her employer thought Ms Higgs’ views may offend or shock others. While any objective justification of a restriction is always dependent on context and employment-specific, the tribunal had not made findings of fact as to whether in this case the limitations on expressing the beliefs were justified. Because of this, the appeal succeeded and the case was sent back to the tribunal to reconsider (in light of the principles outlined by the EAT, see below).

The EAT stated that, within the employment context, it may be helpful for there to at least be some mutual understanding of the basic principles that will underpin the approach adopted when assessing the proportionality of any interference with rights to freedom of religion and belief and of freedom of expression:

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.
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, properly understood, 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.
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.
It will always be necessary to ask:

whether the objective the employer seeks to achieve is sufficiently important to justify the limitation of the right in question
whether the limitation is rationally connected to that objective
whether a less intrusive limitation might be imposed without undermining the achievement of the objective in question, and
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.

To help employers weigh up those questions, within the context of a relationship of employment, they should consider:

the content of the manifestation
the tone used
the extent of the manifestation
the worker’s understanding of the likely audience
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
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
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
the nature of the employer’s business, in particular where there is a potential impact on vulnerable service users or clients
whether the limitation imposed is the least intrusive measure open to the employer

Comment

This decision is not a surprise in light of developing case law in relation to those who have expressed views that gender cannot be fluid. What will be key for employers is the content of policies and instructions given to employees about what they can and cannot comment on and the reasons given for justifying such an instruction.