Balancing different protected characteristics
The Equality Act 2010 provided a list of nine Protected Characteristics against which it was made unlawful to discriminate. However, protecting some of those characteristics could lead to a conundrum for employers about which one would take primacy if there was a clash.
One area which has proved particularly interesting in terms of employment law is that of the protected characteristic of religious belief (or the lack of it, as the Equality Act points out). Over the past few years, we have seen several cases in which a particular aspect of a person’s religious belief has caused them to come into disagreement with the way they are asked to do their job. That disagreement has been particularly pronounced in the area of same-sex relationships and the relatively new area of gender.
A recent case that highlights the problem of dealing with this in an employment situation was that of Higgs v Farmor’s School.
Mrs Higgs had worked as a pastoral administrator and work experience manager at Farmor’s School since 2012. She made posts on her private Facebook page relating to her views on same-sex relationships, same-sex marriage and gender. As an evangelical Christian, she believes that same sex relationships and gender fluidity are both prohibited by the Bible.
The posted content, which was not in her own words but something she had come across, objected to the nature of sex education which she felt normalised same sex relationships and gender fluidity. The posts expressed this view in “florid and provocative language”.
A parent of a student saw the posts and complained that Mrs Higgs held homophobic and prejudiced views.
The parent also said they were worried about the influence Mrs Higgs might have over what were termed “vulnerable pupils”.
The school carried out an investigation. Mrs Higgs was dismissed for gross misconduct – failing to comply with the school’s Code of Conduct. She was allowed the right of appeal, which she took, but her appeal failed.
Mrs Higgs lodged a claim with the Employment Tribunal, saying that she had suffered unlawful discrimination under the Equality Act 2010, in her suspension, the disciplinary investigation, by her dismissal and by the rejection of her appeal against dismissal.
She claimed that those actions amounted either to direct discrimination because of religion or belief, or to unlawful harassment related to religion or belief. Notably, she did not claim unfair dismissal.
The ET concluded, however, that the measures taken by the school had been due to its concerns that someone reading her posts could reasonably consider she held homophobic and transphobic views (which she denied) and that this could have a negative effect in relation to various groups (pupils, parents, staff and the wider community).
The reason for its actions was, therefore, not because of, or related to, her protected beliefs.
The Employment Appeal Tribunal
Mrs Higgs appealed to the EAT, which allowed her appeal and sent the case back to the Employment Tribunal.
In this case, the EAT highlighted the approach to be adopted when assessing the proportionality of any interference with rights to freedom of religion and freedom of expression, based on the four questions set out in the Supreme Court judgment Bank Mellat  UKSC 39
(1) Whether the objective of the measure is sufficiently important to justify the limitation of a protected right;
(2) Whether the measure is rationally connected to the objective;
(3) Whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective; and
(4) Whether, balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter.
The ET did not carry out any assessment of the proportionality of the school’s actions; a task that would have required it to balance the interference with the fundamental rights of the claimant against the legitimate interest arising in respect of the rights, freedoms and/or reputation of others.
The ET also noted that this was not a claim of unfair dismissal and that it was not concerned with the reasonableness of the respondent’s actions; it observed:
“It might be contended that there was a different course of action the [respondent] could have taken, in the light of the position made clear by [the claimant] in the disciplinary process. Since she denied being homophobic or transphobic, a reasonable employer might have taken the view that justice would be served by her (or [the respondent]) making it clear that if anyone thought she held those views they had got “the wrong end of the stick” - that pupils and parents should not be concerned that she would demonstrate any sort of hostility to gay or trans pupils (or indeed gay or trans parents).”
Mrs Higgs made the valid point that this showed there were less intrusive means at the school’s disposal than dismissal.
Guidance for tribunals and employers
The Church of England, which was involved in the case as an intervenor, [a third party with an interest in the subject of the tribunal] said that more general guidance should be provided, not only to assist the ET 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.
The judge said that in her experience, laying down general guidelines could be dangerous. Issues that arise from rights to freedom of religion and belief and freedom of expression tend to be very fact-specific and needed a nuanced approach; there was, she said “no ‘one size fits all’ approach”.
That having been said, she continued, within the context of employment law,
“it may be helpful for there to at least be some mutual understanding of the basic principles that will underpin the approach adopted when assessing the proportionality of any interference with rights to freedom of religion and belief and of freedom of expression”.
She said that regard should be given 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;
(ix) whether the limitation imposed is the least intrusive measure open to the employer.
After allowing Mrs Higgs’ appeal, the EAT said it was sending the case back to the original Employment Tribunal so that it could look at it again and reconsider its judgment in the light of the guidance points set out above.
What can be learned from this case?
Occasionally, a tribunal decision sets out principles that will inform the decision-making process in future tribunals. This is such a case. The EAT’s decision will help guide tribunals when they are looking at whether it is “proportionate and justifiable” for an employer to interfere with an individual’s right to express their beliefs. Similarly, employers would do well to consider this case and the EAT’s ruling when they face the delicate balancing act between competing protected characteristics. This requires open dialogue, clear policies and a top-down commitment to fostering an inclusive culture of understanding, respect and empathy among all employees.