UK: EAT provides welcome guidance on proportionality in belief / freedom of expression cases

In Higgs v Farmor’s School, a matter in which this firm acted for the Church of England as Intervenor, the EAT approved new guidance proposed by the Church when deciding whether the actions of employers in restricting the manifestation of a religion or belief and the free speech of an employee would thereby unlawfully discriminate against that employee. In doing so the EAT, again at the request of the Intervenor, gave unambiguous recognition to the foundational nature of the rights to hold and manifest a religion or (protected) belief and of free speech.

The proportionality guidance requires employers to consider a range of factors (see Guidance below) when deciding what action, if any, to take in relation to an employee who has manifested a religion or belief in a way to which either or both of internal or external stakeholders have taken objection. Because the employment tribunal in this case had not applied an appropriate proportionality assessment, Mrs Higgs’ appeal against the original decision was allowed and the case was sent back to that tribunal for them to apply the guidance against the facts they had originally found. It is hoped that this clarification will encourage employers and employees to resolve any differences on these issues at the workplace (i.e. through mediation) rather than in the employment tribunal.

Background

Mrs Higgs worked as a pastoral administrator and work experience manager in Farmor’s secondary school. She is an evangelical Christian who believes that same sex relationships and gender fluidity are both prohibited by the Bible. Mrs Higgs posted certain content in her private Facebook account objecting to the nature of sex education which she felt normalised same sex relationships and gender fluidity. The language of the posts, which was not Mrs Higgs' own, was later found by the employment tribunal to be “florid and provocative”. A complaint was received (from one of her Facebook “friends” who was a parent at the school) that the posts illustrated that Mrs Higgs was both homophobic and transphobic, and expressed concern at the influence that she could exert over vulnerable pupils. Mrs Higgs denied that she was in fact either homophobic or transphobic, but was suspended and put through a disciplinary process. Mrs Higgs stated that she stood by her views, that she was entitled to express those views (although she admitted that on reflection some of the language used was unfortunate) and reiterated that she was neither homophobic nor transphobic. However, that cut no ice with the school who dismissed her for gross misconduct in breaching its Code of Conduct. Her appeal similarly failed.

Tribunal decision

The employment tribunal accepted that her views constituted a protected religion or belief but found that the school had acted solely because Mrs Higgs would be perceived as holding unacceptable views in relation to LGBTQ+ people. And so the treatment she received was not because of her beliefs but because of that perception of Mrs Higgs' views, even though she herself denied that the perception was correct. Interestingly, the tribunal also found that a different course of action might have been taken by the school by asking Mrs Higgs to make clear that she wasn’t in fact homophobic or transphobic, but that that factor was irrelevant in the context of a discrimination claim.

Appeal

The Church of England was permitted to intervene in the appeal to make submissions on how the various strands of European and domestic law should be integrated, in the light of policy considerations recognising the need to try to reconcile opposing views at a time when public debate has become increasingly strident, while allowing the expression of those views in an environment of mutual respect and tolerance. Maintaining a neutral stance on the appeal, it was also permitted to propose guidance for the application of a proportionality assessment applicable to the issues in the case. The key purpose of this was to seek to recognise the foundational rights of freedom of religion and belief, and freedom of speech (even speech that “may disturb or offend”), that these rights are based on the core values of pluralism, tolerance and dialogue, and that any limitation of those rights must be strictly proportionate to the aim pursued. Where the assessment was most required was in assessing when objection to a manifestation of a religion or belief and exercise of free speech could be justifiably taken given that the then current uncertainty was creating a “chilling effect” on the exercise of those rights. The Intervenor had set out various factors to be taken into account, including - importantly - whether a less intrusive approach could have been taken by the employer.

In its decision the EAT (given by the President) held that the tribunal had not focussed on the clear connection between the Facebook posts and the need to decide if the school’s concerns arose out of Mrs Higgs holding the views she held, or purely the objectionable manifestation of them. By focussing on the school’s views of the posts it had impermissibly narrowed its task. It thereby failed to recognise the “foundational nature of those rights for any democracy” and failed to “carry out the requisite balancing exercise” when assessing the school’s response. Specifically, it “failed to carry out any assessment of the proportionality of the [school’s] actions and whether, in particular a less intrusive response to dismissal would have been proportionate.”

That was sufficient for Mrs Higgs’ appeal to be successful and for the matter be sent back to the Employment Tribunal for it to apply the proportionality guidance to the facts it had found. However, the EAT acceded to the Intervenor’s request (agreed by the school but objected to by Mrs Higgs) that “more general guidance should be provided, not only to assist the tribunal in carrying out the proportionality assessment required, but to better inform employers and employees as to where they stand on issues arising from the manifestation of religious or other philosophical beliefs.”

Guidance

While recognising that all such cases were to an extent fact-specific, the EAT approved the following approach to be applied in the workplace:

1. The foundational nature of the rights (“essential in any democracy”) must be recognised “whether or not the belief in question is popular or mainstream and even if its expression may offend”.
2. The manifestation of the belief and free expression may be limited to the extent necessary to protect the rights and freedoms of others.
3. The employer must be clear that its objective is sufficiently important to justify the limitation of the particular right, that the limitation is rationally connected to it, whether a less intrusive limitation might be applied and whether, balancing the severity of the limitation on the rights of the employee against the importance of the objective, the former outweighs the latter.
4. In answering these questions the following considerations are likely to be relevant:
   • the content of the manifestation;
   • the tone used;
   • the extent of the manifestation;
   • the employee’s understanding of the likely audience;
   • the nature and extent of the intrusion on the rights of others and any impact on the employer’s ability to run their business;
   • whether the employee has made clear that the views expressed are personal or whether they might be seen as representing the views of the employer;
   • whether there is a potential power imbalance given the nature of the employee's role and that of those whose rights are intruded upon;
   • the nature of the employer’s business, in particular where there is a potential impact on vulnerable service users or clients; and
   • whether the limitation imposed is the least intrusive measure open to the employer.

Implications

The publicity around this decision focussed on the fact that a Christian had won their case despite holding views that can be thought to be unacceptable to a significant number of people. The fact that this followed successful claims by Maya Forstater and Alison Bailey in the employment tribunals in similar circumstances could indicate that the tide is turning in favour of the recognition of the rights to hold religion and belief and the right of free speech. Further support for such an approach can be found in the unequivocal recognition by the President of the EAT of the essential nature of these rights.

However, the real significance of this decision is the guidance approved by the EAT. This indicates the complexity of many cases where employees wish to express unpopular beliefs and the need for employers to take a measured approach rather than simply seek to respond to those who may object to that expression. Similarly, it will clearly no longer be sufficient for tribunals in such cases simply to say that the employer would have taken the same responsive action against anyone who had acted in a similar generic way to the employee (eg by breaching a code of conduct) thereby purportedly negating the necessary causal factor between the religion or belief and the action of which complaint is made. Such an approach fails to recognise the importance of the underlying rights and the need for the response to be proportionate.

Most importantly the EAT clearly intended that this guidance would give welcome clarification both to employees not daring to manifest their religion or belief in any way for fear of repercussions, and to employers to understand better how they should respond to complaints about the expression of religion or belief. Now that the nuanced nature of the required balancing exercise has been made clear the real hope is that employers and employees can now resolve any disputes in the workplace rather than in the employment tribunal. Indeed, given the fact that the employment relationship will ordinarily still be continuing, this would be a paradigm case for workplace mediation.

Higgs v Farmor’s School (EA-2020-000896-JOJ)