The ongoing saga of the balancing of legal rights between an individual's right to express their religion or belief, and another individual's right so express their sexual gender identity, has a new update from the Employment Appeal Tribunal.
In the case of Higgs v Farmor’s School, the EAT was asked to make a ruling on whether a tribunal has to consider whether or not the motivation of an employer was the employee’s religion or belief, or whether it was solely the way in which the employee manifested that religion or belief.
In this article, Employment Solicitor Chris Dobbs breaks down the case and discusses the implications for employers.
Case Background
Mrs Higgs worked as a school administrator and was dismissed following a series of social media posts concerning her views on the relationship education provided in schools. Some of these posts were considered by the school to be discriminatory.
Following an investigation, she was dismissed on the basis that the school had concerns that someone reading the posts could interpret them as homophobic or transphobic.
She issued a tribunal claim for both direct discrimination and harassment on the basis of religion or belief.
The school's response was to argue that the reason for the dismissal was not the belief that she held, but that it was the potential perception of others which necessitated the dismissal. The reason for the dismissal, it therefore argued, was not because of the claimant’s belief.
Related: How to deal with bullying and harassment at work as an employer
The appeal
The appeal therefore addressed the question as to how direct discrimination claims, or harassment claims, related to religion or belief, should be viewed by the courts and tribunals when part of the issue was the manifestation of that belief.
The Employment Appeal Tribunal found that the original tribunal had not sufficiently linked the alleged acts of misconduct (the nature of the social media posts themselves) with the claimant’s protected belief or religion in explaining its rejection of the claims.
The EAT decided that the original judgement did not show whether, in accordance with human rights law, it had properly considered if the respondent’s actions were proportionate in the way that they interfered with the expression of the claimant’s religion or belief.
The EAT’s view was that the tribunal could not simply conclude that the respondent had acted by motivation to prevent outside views without asking the question of whether that was in some way linked to a manifestation of a belief (which would be protected) or by an objection to the manifestation of that belief which was objectively justifiable (which would not be protected).
Related: Maya Forstater was discriminated against for transgender beliefs, tribunal rules
What does the outcome of this case mean?
Sitting in the EAT, Mrs Justice Eady was not prepared to lay down any general principles for these kind of cases and stressed the importance of such cases being judged on their individual facts and merits.
She was very clear that belief-based cases in particular are “invariably fact specific”.
The outcome of this decision means that the case will now be referred back to the employment tribunal to properly consider the question of whether the respondent’s conduct was motivated by the manifestation of the claimant's belief or by a justifiable objection to the manner of that manifestation.
An Employment Solicitor’s View
Employment Solicitor Chris Dobbs says: “These cases continue to go to the heart of an intrinsic conflict between free speech and free identity.
Such debates remain highly topical in the public and private spheres and so it is important for employers, in particular, to keep up to date on the progress of these cases.”
What are the implications on free speech?
Chris continues: “While many such cases revolve around gender identity and both religious and scientific based views on sex and gender, the legal implications extend more widely to free speech and the manifestation of beliefs.
Unlike in other countries, such as the United States, the UK does not have a wide-reaching right to free speech which takes precedent over other civil rights. The right we do have is highly qualified and, in law, does not necessarily sit above other rights to not be offended by the manifestation or expression of a particular belief.
The balancing of these rights in the workplace is a particularly difficult exercise and while the vast majority of employers will never experience an issue which escalates to the courts, conflicts can and do arise in the workplace and require very careful management.”
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