Manifestation of Religion or Belief

It is undeniable that social media is a powerful tool to help spread information and support the expression of one’s views but, where is the line drawn when it comes to such expression in the employment context? When can one’s private social media activity pose a threat to their employment?

In the recent Employment Appeal Tribunal (EAT) case of Higgs v Farmor’s School [2023] EAT 89, the Claimant, an employee of the Farmor’s School was dismissed for gross misconduct following a complaint about her personal Facebook posts, which were described as ‘homophobic’ and expressing ‘prejudiced views against the LGBTQ+ community’. There was a particular concern over the posts given that the Claimant in her role, worked alongside LGBTQ+ pupils and created the perception that she held ‘unacceptable views in relation to gay and trans people’ contrary to the Equality Act (EqA) 2010’.

“Religion” and “belief” are protected characteristics under the EqA 2010 and the Act defines belief widely to mean ‘any religious or philosophical belief’ or even a lack of belief. Following her dismissal, the Claimant brought a claim in the Employment Tribunal (ET) claiming harassment and direct discrimination on account of this protected characteristic. The claim was unsuccessful in the ET and prompted a subsequent appeal to the EAT.

While the Claimant is of the Christian faith, it was not her case that she had been directly discriminated on this basis. Rather, the Claimant was arguing that she was discriminated or harassed for her:

1. Lack of belief in “gender fluidity”; 
2. Lack of belief that someone could change their biological sex/gender; 
3. Belief in marriage as a divinely instituted life-long union between one man and one woman; 
4. Lack of belief in “same sex marriage” (contrary to the teachings of the bible)
5. Opposition to sex and/or relationship education for primary school children; 
6. A belief that when unbiblical ideas or ideologies are promoted, she should publicly witness to Biblical truth; 
7. A belief in the literal truth of the Bible

The appeal was allowed by the EAT who concluded that the Tribunal in the first instance had not properly assessed the nature of the post and whether it was a manifestation of the claimant’s beliefs, resulting in the case being remitted back to the ET for judgment.

So what went wrong? It was held that the ET should have firstly assessed if there was a ‘sufficiently close or direct nexus between [the Claimant’s] beliefs and her Facebook posts’. Once this had been done, if satisfied that there was a close nexus, the Tribunal then ought to have assessed the “reason why” the action or decision was taken by the employer and whether it was prescribed by law and necessary to protect the rights and freedoms of others. The EAT refers to this as the proportionality assessment.

Key Takeaways

Employers and practitioners will benefit from the 5 principles identified by the EAT in paragraph 94 of its judgment. These principles should be considered whenever there is a risk that an employer may potentially be interfering with the rights to freedom of religion and belief and freedom of expression.

These principles are as follows:

1. One must recognise the foundational nature of the right at risk (i.e., freedom of expression, freedom of belief)
2. One must be aware that such rights are qualified and can be restricted if appropriate and objectively justifiable.
3. Objective justification is context specific assessment and should be considered carefully.
4. When engaging in the proportionality assessment, the test in Bank Mellat v HM Treasury (No 2) [2014] AC 700 must always be applied:
   1. Whether the objective the employer seeks to achieve is sufficiently important to justify the limitation of the right in question
   2. Whether the limitation is rationally connected to that objective

• Whether a less intrusive limitation might be imposed without undermining the achievement of the objective in question

1. 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

5. Finally, in answering those questions, regard needs to be had to:
   1. The content of the manifestation;
   2. The tone used;

• The extent of the manifestation;

1. The worker’s understanding of the likely audience;
2. The extent and nature of the intrusion on the rights of others and the consequential impact on the employer’s ability to run their business;
3. Whether the worker has made it clear that the views expressed are personal or whether they can be seen/viewed as representing the views of the employer, and whether that might present a reputational risk;

• Potential power imbalance given the nature of the worker’s position or role and those whose rights are intruded upon;
• Nature of the employer’s business and the potential impact on vulnerable service users or clients;

1. Whether the limitation imposed is the least intrusive measure open to the employer.

Comment

While it has been recommended in the Acas guidance that employers should implement social media policies to help clarify the acceptable and unacceptable uses in the workplace, the EAT decision is welcome as it provides much needed updated clarity regarding the approach and the stance the courts will take with respect to manifestation of religion or belief on social media.

If you need detailed advice on such related manners, please do not hesitate to reach out to our experienced Employment team.