Religion or Belief Discrimination: Facebook posts claim remitted back to tribunal.

Issues relating to manifestations of religion or belief arose in Higgs v Farmor’s School – which the Employment Appeal Tribunal (“EAT”) considered recently.

Ms Higgs worked as an administrator and manager at Farmor's School.?Ms Higgs criticised the nature of sex education in schools.?She was particularly concerned about how gender fluidity was being taught.?She made various posts on Facebook about this using terms such as “Brainwashing”.?The School received various complaints about her Facebook posts.?Ms Higgs was suspended and dismissed following a disciplinary investigation.?

Ms Higgs claimed that the actions of the School amounted to either direct discrimination because of religion or belief, or to unlawful harassment related to religion or belief.?Ms Higgs is a Christian.?She alleged that her treatment was as a result of her beliefs.?Her beliefs included a lack of belief in gender fluidity and a lack of belief that someone could change their biological sex (or gender).

The Employment Tribunal dismissed Ms Higgs' claims.?Whilst Ms Higgs' beliefs were protected under the Equality Act 2010, the Tribunal considered that the measures taken by the School had been due to its concerns that someone reading Ms Higgs' posts could (and did) reasonably conclude that she held views which were wholly unacceptable.?The Tribunal said that the reason for the School’s actions was not because of, or related to, Ms Higgs' protected beliefs.

Ms Higgs appealed to the EAT.

The EAT allowed Mrs Higg’s appeal.?The EAT found that the tribunal's judgment did not show that it had considered if the School’s actions were proportionate as an interference with Mrs Higg’s right to freedom of religion or that the Tribunal had carried out the balancing exercise required between the interference with that right and the School’s objectives.

The EAT said that it was not sufficient for the Tribunal to make a finding that the School was motivated by a concern that Mrs Higg’s could be perceived to hold “wholly unacceptable views”. ?Rather, it needed to consider whether the School’s motivation had arisen out of Mrs Higg’s manifestation of belief (which would be protected under the Equality Act) or by a justified objection to that manifestation of belief (which would not be protected).

The EAT declined to give general guidelines for “manifestation of belief” cases as they are fact-specific.?However, it did (helpfully) set out five principles to consider in these types of cases:

(1) ????????The nature of the rights must be recognised: 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 is popular or mainstream and even if its expression may offend);

(2) ????????Those rights are 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. Such limitation or restriction needs to be objectively justified.

(3) ????????Whether a limitation or restriction is objectively justified will always be context specific.

(4) ????????It will always be necessary to ask:

(i) ?????????whether the objective the employer seeks to achieve is sufficiently important to justify the limitation;

(ii) ????????whether the limitation is rationally connected to that objective;

(iii) ???????whether a less intrusive limitation might be imposed without undermining the achievement of the objective in question; and

(iv)????????? 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.

(5) ????????In answering those questions, the considerations identified by the intervenor are likely to be relevant, such that regard should be had to:

(i) ?????????the content of the manifestation;

(ii) ????????the tone;

(iii) ???????the extent of the manifestation;

(iv) ???????the worker’s understanding of the likely audience;

(v) ????????the extent and nature of the intrusion on the rights of others, and the impact on the employer’s ability to run its business;

(vi) ???????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 any reputational risk);

(vii) ??????whether there is a potential power imbalance;

(viii) ?????the nature of the employer’s business;

(ix) ???????whether the limitation imposed is the least intrusive measure open to the employer.