Christian counsellor wins landmark discrimination claim

The Court of Appeal has handed down its highly-anticipated judgment in Higgs v Farmor’s School.

Higgs v Farmor’s School – the background

In this well publicised case, a Christian secondary school counsellor was sacked for gross misconduct following some posts she made on social media. Her Facebook posts criticised the way the topic of relationships is covered in primary school education, in particular the subject of transgender relationships. The counsellor said the dismissal was discriminatory on the grounds of her religious beliefs – her belief that it’s not possible to change one’s biological sex and her belief that marriage is an institution between a man and a woman.

How is religious (aka belief) discrimination unique?

Direct discrimination typically means treating someone unfairly due to a protected characteristic, with no justification possible (except for age discrimination). However, religion/belief differs from other protected characteristics (like race or sex) because, if you hold a belief, it doesn’t mean anything unless you share the belief with other people – aka “manifest” it.

This puts religion/belief discrimination in a particularly interesting position. This is how the law sees it:

1. Employers can’t treat employees unfairly because of their religion or belief.
2. Article 9 of the European Convention on Human Rights protects freedom of religion, including the right to manifest beliefs.
3. Whether an action counts as manifestation depends on its connection to the belief.
4. If an employer penalises an employee for how they manifest their belief (rather than the belief itself), the action must be proportionate and justified.

Essentially, direct discrimination for expressing (or manifesting) your religion or beliefs is unlawful, unless the manifestation is objectionable, and the employer’s response is justified.

Higgs v Farmor’s School: The outcome

The Court of Appeal decided that the counsellor’s Facebook posts were a manifestation of her protected beliefs and the school’s decision to dismiss her was discriminatory. Farmor’s School  countered, saying that she was dismissed for the tone of her posts and reputational concerns, not her beliefs, but the Court of Appeal disagreed – they said the school’s response wasn’t proportionate or justified, especially because her views weren’t expressed at work and didn’t discriminate against pupils.

Can employees express religious views at work?

The Court of Appeal reinforced principles from the Employment Appeal Tribunal (EAT):

• Employees can express (manifest) their beliefs, even if they’re controversial or offensive to others.
• Employers can intervene, but only if they need to protect others’ rights and freedoms.
• To justify any restrictions of expression (manifestation), employers need to assess if they have good enough reason. They must take the least intrusive route, balancing the rights of the employee against their reason for limitation.

Key takeaways for employers

Employers and HR teams must ensure any restrictions on religious expression are justified and minimally intrusive. Make sure that you document clear, objective reasons if you feel the need to limit religious expression / manifestations to avoid claims of discrimination.

EAT guidance for employers

Use this checklist to help you decide your response to religious expression by employees:

• Content and tone
• Extent
• Reach – did the employee expect a wide or limited reach?
• Impact on others’ rights and your business
• Liability – was it clear the views were personal, or could they be seen to reflect the views of your business?
• Power imbalance – was there a risk of coercion, especially in positions of influence?
• Bullying – was there a risk to vulnerable groups depending on your type of business?
• Intervention – Is your planned response proportionate?

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