Guidance given to employers when considering expression of protected beliefs
There have been a number of cases over the past few years relating to the difficult, and contentious, matter of an employee expressing beliefs which may be offensive to other individuals, and how an employer is entitled to react to this. This is especially the case when the situation involves the use of social media. These cases have often been reported widely, such as Forstater v CDG Europe (see our commentary here).
A recent case, considered by the Employment Appeal Tribunal, has given helpful guidance in terms of principles that an employer should consider before interfering with an employee’s right of expression.
Case in the Employment Tribunal
The case of Higgs v Farmor’s School involved the dismissal of a pastoral administrator in a state secondary school, further to social media postings. Mrs Higgs had made a number of posts on her Facebook account regarding relationships education in primary schools, which were brought to the school’s attention by a parent of pupils at the school. Consequently, Mrs Higgs was suspended, and ultimately dismissed, based on the fact that these posts were evidence of discrimination. It was viewed that the posts may “reasonably be perceived as evidencing a negative attitude towards LGBT people”.
A claim was raised for discrimination, based on religion or belief. It was contended that Mrs Higgs had been discriminated against due to, amongst other beliefs, a lack of belief in “gender fluidity”, and a lack of belief in “same-sex marriage”.
The Employment Tribunal (“ET”) considered that these beliefs were protected beliefs under the Equality Act 2010. However, it rejected the argument that Mrs Higgs had been discriminated against, because it concluded that the treatment was not based on the beliefs themselves, but rather based on the concern that readers of the posts might conclude that Mrs Higgs had homophobic or transphobic views. This led to the conclusion that the reason behind the disciplinary process was not because of her protected beliefs.
Mrs Higgs appealed the decision, which was upheld by the Employment Appeal Tribunal (“EAT”). It found that the ET had not engaged properly with the legal precedent, and, had it done so, it would have concluded that there was a close or direct nexus between Mrs Higgs’ Facebook posts and her protected beliefs.
The ET should therefore have conducted a proportionality assessment, to consider whether the measures taken, leading to the teacher’s dismissal, were prescribed by law and were necessary for the protection of the rights and freedoms of others, recognising the essential nature of Mrs Higgs’ rights to freedom of belief and freedom of expression.
As the ET had taken the wrong approach regarding the legal test, the case was remitted to the ET to consider further. However, beyond this, the EAT gave some general principles that employers should be cognisant of when considering these tricky situations.
The guiding principles
Whilst acknowledging that each case would be fact-specific, the guidance included:
- 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 in question is popular or mainstream and even if its expression may offend.
- These essential rights are qualified and will only be protected to the extent that the law affords, which for the necessary protection of the rights and freedoms of others may need to be restricted. Where the limitation is objectively justified given the manner of the expression, this is not to be construed as action taken because of the exercise of the rights but instead because of the objectionable manner of the manifestation.
- Whether a limitation or restriction is objectively justified will always be context specific. The fact that the issue arises within a relationship of employment will be relevant, but different considerations will inevitably arise, depending on the nature of that employment.
- It will always be necessary to ask (i) whether the objective the employer seeks to achieve is sufficiently important to justify the limitation of the right in question; (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.
- In answering those questions, within the context of a relationship of employment, 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.
These are thorough and detailed principles, and, when an employer is contemplating disciplinary action against any employee for the expression of potentially protected beliefs, should be taken into account by decision-makers. The guidance outlined at point 5 above will be of particular relevance.
This is a treacherous area of law, as the balance of competing rights is not straightforward. Should your business require any advice in this area, our team of specialist employment lawyers will be able to assist.
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