EAT gives guidance on proportionality in 'manifestation of belief' cases

The tricky issue of competing protected characteristics is back in the news again. The  Employment Appeal Tribunal has upheld an appeal against an employment tribunal's decision that a Christian employee was not directly discriminated against or harassed because of her protected gender critical beliefs after being dismissed for criticising the nature of sex education in schools, including gender fluidity and same sex marriage. We’ll ask a discrimination expert what lessons employers can take from the ruling. 
The case has been widely reported in the press, including the Telegraph which covers the case in some detail. The claimant, 46-year-old Kristie Higgs, worked as a teaching assistant at Farmor's School in Gloucestershire and criticised plans to teach LGBT+ relationships in primary schools. The school received a number of complaints relating to Facebook posts in which Higgs criticised the nature of sex education in schools, with a particular concern about gender fluidity. One read: “PLEASE READ THIS! THEY ARE BRAINWASHING OUR CHILDREN!.” Higgs was suspended and, after a disciplinary investigation, she was dismissed for gross misconduct.  She brought a tribunal claim claiming the actions of the school amounted to either direct discrimination because of religion or belief, or to unlawful harassment related to religion or belief, namely her belief that someone couldn’t change their biological sex. 
The tribunal dismissed her claims on the basis that the school’s reason for its actions were concerns that someone reading the posts could reasonably consider that she held transphobic and homophobic views, and not on grounds of her protected beliefs. On appeal, the EAT decided the tribunal had got it wrong. The tribunal had not properly assessed the nexus between the Facebook posts and Mrs Higgs’ protected beliefs. There was in fact a close or direct nexus between the posts and her underlying beliefs which meant it was necessary to carry out a proportionality assessment of the school’s decision to dismiss Mrs Higgs and that interference with her fundamental rights. The case was remitted back the employment tribunal to conduct that assessment.
The case is the latest example of how competing views can stir up strong feelings and reaction and demonstrates, once again, that these cases are complex and tricky to judge. After all, the tribunal in this case had given it plenty of thought and ultimately they got it wrong , so what chance managers? Let’s get a view on that. Earlier I spoke to Anne Sammon about the EAT’s ruling: 
Anne Sammon: “So I think the starting point is that the EAT and the courts for a long time have recognised that manifesting these beliefs is kind of a fundamental part of someone's religion or belief, but that there are kind of limitations on what people can say. So, I think the first thing is to just be very clear that this isn't a case that says that people can't hold particular beliefs. It's all about how people might manifest those, and the impact that it has on the workplace. So, I think in terms of practical guidance when you're dealing with one of these issues, the first question you always need to ask is, well, what impact has whatever the person has done actually had on the workplace, and this case is a good example where, arguably, the person's posts were related to education, and she was holding a role within a school and, therefore, you can see that there is a closer connection to her employment than if she'd posted something that was completely irrelevant to what she did in her day job. So, I think first thing is what is the impact that the behaviours, or whatever the employee has done, is actually having on other people, and it's a balancing act. So, it's about the degree of harm for the individual who feels that they've been aggrieved, or attacked, in some way and balancing that against the other individual’s rights. So, the challenge with all of these cases is that they are so fact specific and what you can't do is kind of say, well, in this last case, we did x, so that's going to be appropriate in this new case. It is very much going through the analysis and working out what's appropriate for this particular circumstance.”
Joe Glavina: “There is a lot of commentary out there on this case, Anne, and I see there’s a law firm suggesting that employers should be bold and pin their colours to the mast and demonstrate support for the LGBT community. What do you think about that approach?” 
Anne Sammon: “I think it's all about how everything is framed because one of the best messages that I've seen put out by an employer was around tolerance; recognition of the fact that employees will hold different beliefs and that that the employer wasn't trying to kind of regulate those beliefs, but what it was trying to do was to say, we all work together employees, and therefore what we need you to do is, if you're going to talk about these topics, be respectful. So, I think tolerance and respect as messages are really important and whilst lots of organisations will kind of pin their colours to the mast, it is about how those messages are framed and making sure that as a result of the way that you're messaging things you're not excluding particular groups of individuals or causing harm to those individuals within the workplace.”
Joe Glavina: “It’s a complicated area, Anne, and I can imagine managers will struggle with some of the subtleties around this. So, perhaps an area for HR to arrange some training?” 
Anne Sammon: “I think there is some training to be done in terms of what is and isn't appropriate, acceptable behaviour. I think some of this is also HR teams kind of partnering with the business to make sure that where these difficult issues arise the managers are appropriately leveraging the expertise that the HR team have because managers aren't expected to be experts in all of these issues, but there will be people with that expertise within the HR teams and within diversity and inclusion parts of the HR team. So, I think it's about kind of working out how the business can work together with HR to navigate these really tricky areas.”
Joe Glavina: “Anything else to add, Anne?”
Anne Sammon: “So, I think one of the really interesting things about a lot of these cases is these are all highlighting the issue of social media and what, increasingly, we're finding is that employees, maybe, don't understand that what they say on social media also has an impact on how relationships in the workplace might function. So, I think considering whether or not you want to train employees in what is and what isn't appropriate behaviour on social media is definitely something that should be under consideration particularly, for example, within the financial services sector where an individual might say something that is wildly inappropriate on social media that could have implications for whether or not they're fit and proper and, potentially, could be career ending.”
That case is a decision of the Employment Appeal Tribunal called Higgs v Farmor’s School. We have put a link to it in the transcript of this programme.
LINKS
Link to judgment: Higgs v Farmor’s School