The Employment Appeal Tribunal (EAT) has held in Higgs v Farmor's School that an employment tribunal was wrong to reject the direct religion or belief discrimination claim brought by a Christian teacher who was dismissed for posts she made on Facebook criticising the nature of sex education in schools and, in particular, the teaching of "gender fluidity".
It was held that the teacher's lack of belief in gender fluidity was protected under the Equality Act 2010 and there was a sufficiently close nexus between her belief and her Facebook posts, which she relied on as a manifestation of her beliefs.
At first instance the tribunal rejected her claims for direct discrimination and harassment. It found that, although her beliefs were protected, she was not dismissed because of them, but because of the school's concern that she would be perceived as holding homophobic and transphobic views. She appealed to the EAT.
The EAT noted that, under the Human Rights Act 1998, the tribunal was required to determine Ms Higgs' claim in accordance with Article 9 which protects freedom of thought, conscience and religion, and Article 10, which protects freedom of expression. If there had to be a restriction on the manifestation of a belief or freedom of expression then that restriction would have to be prescribed by law, pursue a legitimate aim, and be necessary in a democratic society. As a result, a proportionality assessment would be required.
The EAT remitted the matter back to the tribunal to determine whether, in view of the essential nature of Ms Higgs' rights to freedom of belief and freedom of expression, the measures adopted by the school were prescribed by law and, if so, whether they were necessary in pursuit of the rights, freedoms or reputation of others. It held that the tribunal ought to have undertaken a proportionality assessment to determine whether the school’s actions in disciplining and dismissing the teacher 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.
The EAT highlighted the dangers of laying down general guidelines, but set out some basic principles to underpin the approach adopted when assessing the proportionality of any interference with rights to freedom of religion and belief and freedom of expression.
It stated that, although the freedom to manifest a belief and to express views relating to that belief are essential rights in any democracy (even if such expression may offend), this right is qualified. It will be protected, but not where the law permits the limitation or restriction of such manifestation or expression to protect the rights and freedoms of others. Whether a limitation or restriction is objectively justified will always be context-specific.
It will always be necessary to ask the following questions identified by the Supreme Court in Bank Mellat v HM Treasury (No 2) (which sets out the broad approach to proportionality in cases involving ECHR rights). Is the objective the employer is seeking to achieve sufficiently important to justify the limitation of the right in question, and is the limitation rationally connected to that objective? Can a less intrusive limitation be imposed without undermining the objective, and, when balancing the severity of the limitation on the rights of the worker concerned against the importance of the objective, does the former outweigh the latter?
When answering these questions, various considerations will be relevant. These include the content and extent of the manifestation and the tone used, the extent and nature of the intrusion on the rights of others, whether the worker has made it clear that the views expressed are personal or whether they may be seen as representing the views of the employer and whether the limitation imposed is the least intrusive measure open to the employer.
Take note: Whilst it's now well-established that gender critical beliefs are protected under the Equality Act 2010, it's not always going to be the case that the manifestation of such beliefs will be protected. It may be that an employer is objectively justified in disciplining or (as in this case) dismissing an employee for manifesting their beliefs, but it will be a finely judged balancing act based on the facts of each case. The EAT's basic principles detail how to approach the proportionality of any interference with an individual's belief and freedom of expression and so are a useful tool for considering the balance of conflicting rights.
