It is unlawful discrimination for an employer to dismiss someone for manifesting a protected belief, such as religion. In Higgs v Farmor’s School, the EAT held that when considering a discrimination claim on the ground of religion, tribunals must consider whether the employer was motivated by the manifestation of the employee’s beliefs (protected under the law) or by a justified objection to that manifestation (not protected).
Basic facts
Ms Higgs was employed by the school as a pastoral administrator and work experience manager. The head teacher received a complaint about a Facebook post that Ms Higgs had made which was critical of teaching in schools about same sex relationships, same sex marriage and gender being a matter of choice. The complainant described the posts as homophobic and prejudiced against the LGBT community.
After an investigation and a disciplinary hearing, the school dismissed Ms Higgs on the ground of gross misconduct. She lodged claims of direct discrimination and harassment because of her religion or belief. These included her lack of belief in “gender fluidity” and that someone could change their biological sex; and a belief in the literal truth of Genesis 1 v27 which states that “God created man in His own image”.
Tribunal decision
Although the tribunal agreed that Ms Higgs’ beliefs constituted a protected characteristic under the Equality Act 2010, it rejected her claims on the basis that she was not dismissed because of her beliefs, but rather because someone reading her Facebook posts might reasonably conclude that she was homophobic and transphobic.
Ms Higgs appealed, arguing that the tribunal decision interfered with her rights to freedom of belief and freedom of expression under articles 9 and 10 of the European Convention on Human Rights (ECHR).
EAT decision
Allowing the appeal, the EAT held that the tribunal had failed to engage with the question identified in Eweida and ors v UK (LELR 315). That is, whether there was a “close or direct nexus” between Ms Higgs’ Facebook posts and her protected beliefs. Had it done so, it would have concluded that there was.
It should then have gone on to consider whether the school’s response was necessary for the protection of the rights and freedoms of others, whilst also recognising the essential nature of Ms Higgs’ right to freedom of belief and the freedom to express that belief.
It was not enough for the tribunal to find that the school had been motivated by a concern that Ms Higgs could be perceived to hold “wholly unacceptable views”, it also needed to consider whether the action taken by the school was the result of the manifestation of her protected beliefs (protected by the Equality Act), or the result of a justified objection to that manifestation (which was not protected). In other words, what was the “reason why” the school acted as it did. The EAT, therefore, remitted the matter for re-hearing on that question.
It also laid down guidance for future tribunals to bear in mind when deciding these issues, including the foundational nature of the freedom to manifest belief (religious or otherwise) and to express views relating to that belief in a democracy. They are, however, not absolute rights, and considerations as to whether a restriction is objectively justified will always be context-specific. It is, therefore, always necessary to ask whether the objective the employer seeks to achieve is sufficiently important to justify the limitation of the right in question.