A case on manifestation of religion and belief in the workplace has recently concluded in the Employment Appeal Tribunal (EAT).
The Claimant in this case, Mrs Higgs, was a school administrator and work experience manager at a secondary school with academy status in Gloucestershire.
She was dismissed from the school after some of her social media posts on Facebook relating to relationship education in schools and religion led to complaints from parents.
The case provides some useful guidance on assessing the proportionality of interferences with the freedom of expression, and serves as a reminder to employers to keep an up-to-date social media policy.
Facts of the case
Following her dismissal, Mrs Higgs made a claim in the Employment Tribunal (ET) for direct discrimination because of her protected beliefs, and harassment relating to them.
She argued in the ET that her protected beliefs included a ‘lack of belief in gender fluidity’ and ‘lack of belief in same-sex marriage’. The ET ruled in favour of the School, concluding that Mrs Higgs had been dismissed because the school was concerned that someone reading her Facebook posts could reasonably assume that she held homophobic views, and that she was not dismissed because of or in relation to her protected beliefs.
However, the EAT took the view that there was a sufficiently close connection between the Claimant’s conduct and her beliefs, such that the posts constituted manifestations of her beliefs under article 9 of the European Convention on Human Rights (article 9 states that everyone has the right to freedom of thought, conscience and religion).
The EAT found that the ET had erred in their findings, and ought to have undertaken a proportionality assessment to determine whether the school’s actions in dismissing the Claimant were because of or related to her manifestation of the protected beliefs, or instead because of a justified objection to the manner in which she had expressed those views.
Within their judgment, the EAT set out some guidance for employers to consider when assessing the proportionality of their interference with an employee’s freedom of religion and belief. They said that in an employment relationship, regard should be had to:
- The content and extent of the manifestation;
- The tone used by the employee in their expression;
- Whether the employee has made it clear that the views they have expressed are personal to them;
- The employee’s understanding of the likely audience; and
- The nature of the employer’s business.
Action points/reminders to employers
Whilst these points to consider should not be seen as a ‘tick-box exercise’ for employers, it provides them with some guidance as to how they should address employees who have manifested their belief in a way that others might consider objectionable.
This case also serves as a reminder to all employers to have a social media policy for staff to abide by. This document will outline how employees are expected to conduct themselves online, both during and outside of work, and may help to avoid employers becoming embroiled in future disputes surrounding opinions expressed on social media by employees.
(Higgs v Farmor’s School  EAT 89)