As the current, often polarised, public debate relating to same sex relationships and transgender issues continues, on 16 June 2023, the EAT handed down its long-awaited judgment in the case of Higgs -v- Farmor’s School, in which it provides some important basic principles that should be followed by the courts when assessing the proportionality of any interference with rights to freedom of religion and belief and expression.
Background
Mrs Higgs worked as a pastoral administrator/work experience manager in the school. Complaints were received by the school about Mrs Higgs’ Facebook posts (described by the ET as using ‘florid and provocative language’) relating to, amongst other things, relationships education in primary schools. Mrs Higgs was suspended and thereafter dismissed following a disciplinary investigation, and she brought an ET claim alleging the dismissal was direct religion or belief discrimination and/or harassment related to her protected beliefs.
At the ET it was determined that Mrs Higgs’ beliefs were:-
- Lack of belief in ‘gender fluidity’.
- Lack of belief that someone could change their biological sex/gender.
- Belief in marriage as a divinely instituted life-long union between one man and one woman.
- Lack of belief in ‘same sex marriage’ (recognising that same sex marriage was legal, she believed this was contrary to Biblical teaching).
- A belief that when unbiblical ideas or ideologies are promoted, she should publicly witness to Biblical truth.
- A belief in the literal truth of the Bible, and in particular Genesis 1v 27: ‘God created man in His own image, in the image of God He created him; male and female He created them’.
The ET found the steps taken by the school were due to its concerns that someone reading Mrs Higgs’ posts could reasonably consider she held homophobic and transphobic views – something she denied – and therefore were not because of/related to her protected beliefs. Mrs Higgs appealed.
EAT decision
The EAT upheld Mrs Higgs appeal.
It found that whilst the ET had been entitled to find that there had been a concern underlying each of the decisions it made (i.e. to suspend, investigate, dismiss Mrs Higgs and not uphold her appeal against dismissal) it had failed to engage with the relevant question identified in an earlier case, namely whether the conduct complained of involved any limitation on the claimant’s (human) rights of freedom of thought, conscience and religion, which in turn, required an assessment of whether the actions of the claimant (the Facebook posts in this case) amounted to a manifestation of religion or belief. Had it done so, it would have concluded that there was a close or direct nexus between Mrs Higgs’ Facebook posts and her protected beliefs.
Consequently, in determining the reason why the school acted as it did, the ET was required to assess whether those actions were prescribed by law and necessary for the protection of the rights and freedoms of others – recognising the essential nature of Mrs Higgs’s ECHR rights to freedom of thought, conscience and religion and freedom of expression.
The proportionality assessment that the ET had to undertake was necessary in determining whether the school’s actions were because of, or related to, the manifestation of Mrs Higgs’ protected beliefs, or were due to a justified objection to the manner of that manifestation – in line with established caselaw.
The EAT found that the ET had erred in its approach to the determination of the ‘reason why’ question in this case and, therefore, this matter has been remitted back to the ET for a re-hearing on this issue.
Guidance
The EAT’s decision provides guidance (whilst recognising a danger arises from any attempt to lay down guidelines in cases such as this which are invariably fact specific) on the principles to be adopted by the courts when considering the proportionality of any interference with rights to freedom of religion and belief and freedom of expression. Specifically:
(a) The foundational nature of the rights must be recognised: the freedom to manifest belief (religious or otherwise) and to express views relating to that belief are essential rights in any democracy, whether or not the belief in question is popular or mainstream and even if its expression may offend;
(b) Those rights are, however, qualified. The manifestation of belief, and free expression, will be protected but not where the law permits the limitation or restriction of such manifestation or expression to the extent necessary for the protection of the rights and freedoms of others. Where such limitation or restriction is objectively justified given the manner of the manifestation or expression, that is not, properly understood, action taken because of, or relating to, the exercise of the rights in question but is by reason of the objectionable manner of the manifestation or expression;
(c) Whether a limitation or restriction is objectively justified will always be context-specific. The fact that the issue arises within a relationship of employment will be relevant, but different considerations will inevitably arise, depending on the nature of that employment;
(d) It will always be necessary to ask: (i) whether the objective the employer seeks to achieve is sufficiently important to justify the limitation of the right in question; (ii) whether the limitation is rationally connected to that objective; (iii) whether a less intrusive limitation might be imposed without undermining the achievement of the objective in question; and (iv) whether, balancing the severity of the limitation on the rights of the worker concerned against the importance of the objective, the former outweighs the latter;
(e) In answering those questions within the context of a relationship of employment, regard should be had to:
- (i) The content of the manifestation;
- (ii) The tone used;
- (iii) The extent of the manifestation;
- (iv) The worker’s understanding of the likely audience;
- (v) 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;
- (vi) 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;
- (vii) 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;
- (viii) The nature of the employer’s business, in particular where there is a potential impact on vulnerable service users or clients; and
- (ix) Whether the limitation imposed is the least intrusive measure open to the employer.
As the public debate, often conducted via trenchant and passionately held views and beliefs, shows no sign of abating employers may find themselves having to grapple with this complex and challenging issue when responding to complaints about the comments/actions of employees. This decision should provide some general assistance with the careful balancing approach that needs to be taken. However, as signalled by the EAT, care will always need to be taken to ensure that the specific circumstances are properly considered and careful nuanced decisions are made – this is not an area where a ‘one size fits all’ approach is appropriate.
Should you find yourself having to cross this tricky terrain, please do not hesitate to contact Hill Dickinson’s experienced Health Employment team, for advice and support.
For further information, please contact:
Fiona McLellan, Partner, Hill Dickinson
fiona.mclellan@hilldickinson.com
