Case update: Guidance for employers balancing expressions of religion or belief with the impact on others
The Employment Appeal Tribunal case of Higgs v Farmor's School [2023] EAT 89 provides much-welcomed guidance for employers grappling with situations where statements by an employee (based on their religion or belief), such as social media posts, interfere with the rights of others.
Background
"A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others" (s. 13 Equality Act 2010)
The claimant (Mrs Higgs) was an employee of the respondent school, working as an administrator / work experience manager, dealing with pupils and parents.
One of the parents complained to the head teacher about a Facebook post written by Mrs Higgs which the parent said contained "homophobic and prejudiced views against the lgbt community" and which the parent found "offensive".
The Facebook post was highly critical of Government proposals on changing relationships education in schools (and contained a link to an online petition), which Mrs Higgs claimed was "aimed at supressing" Christian beliefs on marriage and relationships.
When challenged by the head teacher about the posts, Mrs Higgs accepted that "they might have been seen by parents of pupils" but that she was "not against gay, lesbian or transgender people" and had merely copied and pasted the text from the online petition.
Mrs Higgs was suspended pending an investigation, which then led to a disciplinary hearing. After that hearing, Mrs Higgs was summarily dismissed for gross misconduct.
The misconduct was said to be Mrs Higgs' breach of the school's Code of Conduct, which gave examples of gross misconduct as including "illegal discrimination" and "inappropriate use of social media ... that could bring the school into disrepute".
Mrs Higgs then brought a claim for unlawful discrimination / harassment based on her religion / beliefs.
The Employment Tribunal rejected Mrs Higgs' claims on the basis there was no causal link between her beliefs and the treatment of her by the school (as required under the Equality Act 2010 - see left). Rather, the disciplinary process was as a result of the school's "conclusion that [Mrs Higgs'] action in posting the items in question might reasonably (and in fact did) lead others to conclude that she held wholly unacceptable views".
Employment Appeal Tribunal Decision
Perhaps unusually, the Employment Appeal Tribunal allowed The Archbishop's Council of the Church of England to participate in the appeal as a neutral intervenor, primarily in order to make submissions on principles that may be useful to other employers faced with similar social media-related issues (see below).
The Employment Appeal Tribunal decided that the Employment Tribunal had (in essence) been too narrow in its analysis and application of relevant legal principles - and remitted the case back to the Employment Tribunal for reconsideration in accordance with the principles summarised below.
Guidance for employers
"This framework and guidance will be welcome to employers juggling (sometimes) conflicting duties to employees and other stakeholders when dealing with issues arising from the use of social media."
Jamie Feldman
Partner, Northridge
Many employers, like the school in this case, have codes of conduct or other company policies relating to social media usage. Such policies will often include examples of conduct which the employer considers amounts to misconduct.
Following this case, employers should ensure those policies, and the application of those policies (e.g. as part of a grievance or disciplinary process), align with the approach and principles outlined below, which represent a summary of what is said in this Employment Appeal Tribunal decision.
- Employers can place limits on an employee's manifestation of beliefs: The law permits the limitation or restriction of the manifestation of belief (religious or otherwise), or free expression, to the extent necessary for the protection of the rights and freedoms of others.
- But only where that limit is objectively justified: This will always be context-specific, but the key questions to ask are whether: (i) the objective the employer seeks to achieve is sufficiently important to justify the limitation of the right in question; (ii) the limitation is rationally connected to that objective; (iii) a less intrusive limitation might be imposed without undermining the achievement of the objective in question; and (iv) balancing the severity of the limitation on the rights of the worker concerned against the importance of the objective, the former outweighs the latter.
- Specific considerations for employers when considering the above points:
- the content of the manifestation;
- the tone used;
- the extent of the manifestation;
- the worker’s understanding of the likely audience;
- the extent and nature of the intrusion on the rights of others, and any consequential impact on the employer’s ability to run its business;
- whether the worker has made clear that the views expressed are personal, or whether they might be seen as representing the views of the employer, and whether that might present a reputational risk;
- whether there is a potential power imbalance given the nature of the worker’s position or 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;
- whether the limitation imposed is the least intrusive measure open to the employer.
