Key Legal Framework: Religion and Belief under Equality Act 2010 (EqA 2010)
Religion and belief is a protected characteristic under the EqA 2010, making it unlawful to treat employees less favourably for expressing their religious or philosophical beliefs. However, disciplinary action can be justified if an employee expresses their beliefs in a way deemed objectionable or offensive, provided this action is objectively justified and proportionate.
Case Overview: Mrs Higgs’ Dismissal
Mrs Higgs, a Christian, was a pastoral administrator and work experience manager at Farmor’s School. She was dismissed after a parent raised concerns about her Facebook posts. The posts, which were not her own but which she had reposted from other sources, criticised teaching on same-sex relationships and gender identity, stating that “the LGBT crowd with the assistance of the progressive school systems are destroying the minds of normal children by promoting mental illness”. The parent who raised the concern believed these posts indicated that Mrs Higgs held homophobic, transphobic and prejudiced views.
The school dismissed Mrs Higgs for gross misconduct, citing potential reputational harm. She subsequently pursued claims of direct discrimination and harassment, arguing that her dismissal was rooted in her religious beliefs, including a belief in the Bible’s account of gender and a lack of belief in same-sex marriage or gender fluidity. There were a number of interveners in the case including the Archbishops’ Council of the Church of England and the Equality and Human Rights Commission.
The Court’s Findings: Dismissal Ruled Discriminatory
The Court of Appeal ruled that Mrs Higgs’ dismissal was discriminatory and disproportionate, emphasising the following key points:
- Offensive Threshold Not Met: Mrs Higgs’ posts, while critical, were neither gratuitously offensive nor extreme.
- Limited Personal Responsibility: Most of the content was reposted from others, reducing her culpability.
- No Evident Reputational Damage: The posts were shared from a personal account, without reference to the school, and no damage to the school’s reputation was proven.
- No Impact on Work Performance: There was no indication that Mrs Higgs’ views affected her ability to perform her role.
The court also cautioned employers against making stereotypical assumptions about beliefs, such as equating gender-critical views with transphobia, warning that such assumptions may constitute direct discrimination.
The court emphasised that employers must demonstrate their actions were an objectively proportionate response to the circumstances when disciplining an employee for expressing beliefs that may cause offence or risk reputational harm. This sets a notably high standard. However, it also showed that direct discrimination on the grounds of religion or belief can, in certain circumstances, be justifiable. Specifically, if an employer’s actions are motivated not by the belief itself but by the manner in which it is expressed, and if the employer can demonstrate that their response was a proportionate means of achieving a legitimate aim, such as safeguarding the school’s reputation, the dismissal may be lawful. Crucially, where damage to reputation is asserted by the employer, there must be evidence of that.
Key takeaways
This ruling underscores the challenges schools and MATs face when navigating competing rights and interests. The following key lessons emerge:
- Assess the Risk of Reputational Harm: Ensure there is clear evidence of potential reputational damage before taking action. Consider whether the belief expressed is relevant to the school’s ethos or operations.
- Evaluate the Expression of Beliefs: Disciplinary action may be justified if the manner of expression crosses a high threshold of offensiveness. Merely critical statements are unlikely to suffice.
- Ensure Proportionality: Any action must be a proportionate response to the circumstances. A full and balanced assessment of all relevant factors is essential before proceeding.
- Avoid Stereotyping Beliefs: Decisions must not be influenced by stereotypes or assumptions about an employee’s beliefs.
It is also important to avoid knee jerk reactions to social media posts or expressions or manifestations of a belief by an employee simply because an employer or the decision maker objects to them. However, the case is not a green light to employees to conduct themselves however they wish and use their belief as a defence to disciplinary action or dismissal. The case made clear that:
- if an employer dismisses an employee merely because they have expressed a religious or protected belief to which the employer (or a third party with whom it wishes to protect its reputation) objects, that will constitute unlawful direct discrimination.
- if, in its defence, the employer argues its allegedly adverse treatment of an employee is not because the employee holds a protected belief but is because of how the employee has expressed the belief, the tribunal will need to decide whether the conduct was a manifestation of belief, whether the manifestation was objectionable, and whether the employer’s response was objectively justifiable.
- the question of whether an employee’s conduct is actually a manifestation of belief is to be answered by applying the test laid down in Eweida v UK [2013] 57 EHRR 8: is there a sufficiently close and direct nexus between the belief and the act. The question of whether the manifestation is objectionable requires consideration of the circumstances in which it occurs, the meaning of the words, the forum and context for what is said or done, the content and the manner.
- the question of whether the employer’s response is objectively justifiable is to be answered by reference to the EAT’s guidance, as follows:
“…regard should be had to: (i) the content of the manifestation; (ii) the tone used; (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 any consequential 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 whether that might present a reputational risk; (vii) 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; (viii) the nature of the employer’s business, in particular where there is a potential impact on vulnerable service users or clients; (ix) whether the limitation imposed is the least intrusive measure open to the employer.”
The burden is on the employer to prove that its response – its interference with the employee’s qualified right to express their belief or to freedom of expression – is proportionate.
For advice on any of the issues discussed in these case updates, or any other employment or HR related matter for schools, please contact Winckworth Sherwood’s dedicated Schools HR helpdesk on SchoolsHR@wslaw.co.uk or 0345 026 8690