The Equality Act 2010 protects employees from discrimination by their employer based on their religious belief. Additionally, an employee’s non-religious (philosophical) belief may be protected in law where the belief satisfies certain criteria set out in case law. While under human rights legislation the right to hold a particular religious belief is absolute, a person's freedom to manifest (express) their religion or belief is only a qualified right; meaning it must be balanced against the protection of the rights and freedoms of others. Previous decisions of the courts and tribunals have confirmed that while an individual may be entitled to protection for holding a particular belief, they do not have free rein to express or manifest that belief in any way they wish. Conversely, nor do individuals have an absolute right to be shielded from beliefs they may find offensive. Where an employee expresses beliefs connected to their employment that may be contrary to the rights of colleagues, customers or clients, or may be damaging to the reputation of the employer, the employer will need to decide on an appropriate response. As case law has shown, getting this balance right can be a complex balancing act for the employer.
The Court of Appeal has provided recent guidance in this complex area in the case of Higgs v Farmor’s School. In this case, the employee was a pastoral administrator at a school (with responsibility for overseeing students removed from class for disruptive behaviour). She was dismissed from the school for gross misconduct after sharing Facebook posts criticising relationship and sex education in schools, particularly concerning teachings on same-sex marriage and gender identity. The employee had a private Facebook account in her maiden name. Nothing on her Facebook account linked her to the school. A parent reported these posts as "homophobic and prejudiced," prompting the school to dismiss her on conduct grounds; although during the investigation, the school did not find evidence that the posts might compromise her position of trust working with children. Further, the school did not have evidence that the employee had ever expressed her views about gender fluidity or same-sex marriage to pupils or staff in the school or treated gay, lesbian or transgender pupils or staff differently.
The employee claimed her dismissal amounted to unlawful discrimination based on her fundamental Christian beliefs. Her Christian beliefs included the belief that marriage is a divinely instituted life-long union between a man and a woman and did not believe that someone can change their biological sex.
The Court of Appeal ruled in favour of the employee, finding her dismissal was not objectively justified on the facts of the case and amounted to unlawful discrimination under the Equality Act 2010 on the grounds of her religious beliefs.
The Court focused on the Court of Appeal’s previous ruling (Page v NHS Trust Development Authority [2021] EWCA Civ 255) which set out the distinction between unlawful treatment because of or related to the individual’s worship, teaching, practice and observance of protected religious beliefs (which would amount to unlawful discrimination or harassment) and a justified objection to the manner in which the individual has expressed their belief. In the latter case, this is capable of justification if the response is proportionate (based on the balancing act of qualified human rights set out in article 9 of the European Convention on Human Rights in relation to the right to freedom of thought, conscience and religion and article 10 in relation to freedom of expression).
In other words, the employment tribunal is required to determine whether the employer is objecting to the employee’s beliefs themselves (which is likely to amount to unlawful discrimination or harassment), or to the objectionable way in which the employee expresses them. In the latter case, the employer will need to justify this by proving their response (such as a decision to dismiss) is proportionate. The court noted that while the school's concerns about the language used in the posts were valid, the dismissal was a disproportionate response, especially given the employee’s long service and lack of prior complaints about her work.
FSB members should take legal advice via the FSB Legal advice line prior to dismissing any employees.