The EAT has upheld an appeal against an employment tribunal’s decision that a Christian employee was not directly discriminated against or harassed because of her protected beliefs, including that gender cannot be fluid and that an individual cannot change their biological sex or gender.
Facts
Mrs Higgs is a Christian and was employed as a pastoral administrator and work experience manager by Farmor’s School. She worked with pupils and had contact with parents.
Mrs Higgs made posts on Facebook, expressing her views on same-sex relationships, same-sex marriage and gender fluidity. A parent who had seen the posts complained that Mrs Higgs held homophobic and prejudiced views against the LGBTQ+ community. Following an investigation and disciplinary hearing, Mrs Higgs was dismissed for failing to comply with the school’s code of conduct. Mrs Higgs presented a claim for religious discrimination and harassment, arguing that her freedom of expression and religious beliefs were being unlawfully curtailed.
ET decision
An employment tribunal dismissed her discrimination claim as it found that the school’s disciplinary proceedings against her were not motivated by her beliefs but by the school’s concern that, because of the content in her Facebook posts, she would be perceived as holding unacceptable views about gay and transgender people.
EAT decision
The EAT held that the tribunal had erred in its approach as it had failed to consider if the school’s actions were because of, or related to, the manifestation of the school worker’s beliefs, or were in fact owed to a justified objection to the manner of that manifestation. The EAT remitted the case back to the tribunal for a rehearing of that issue.
Principles
The EAT’s decision highlights key principles in assessing when it is proportionate and justifiable for an employer to interfere with an individual’s right to express their beliefs.
The importance of respect for human rights
The judgment emphasised an individual’s right to express their beliefs, irrespective of whether that belief is popular or may offend.
The impact on others
Tribunals must consider the potential impact of an individual’s beliefs on their colleagues. Rights to express those beliefs may not be protected where the law permits restriction of that expression in order to protect the rights and freedoms of others.
Proportionality
Any such restrictions on an employee’s expression of beliefs should be proportionate to achieve the objective in question. Employers should consider whether the restriction is connected to the objective, and whether a less intrusive measure would be sufficient.
Balance
Employers must aim to balance the severity of the restriction against the importance of the objective while recognising the right to express unpopular beliefs.
