Free speech and belief discrimination: where are we now?

The recent Employment Appeal Tribunal decision in University of Bristol v Miller  is a useful reminder of how employers should deal with conduct linked to an employee’s protected religion or belief.

Background case of Higgs

In Higgs v Farmor’s School, a Christian secondary school counsellor was sacked for gross misconduct after posting on Facebook.  Her posts criticised the way relationships were taught in primary school education and particularly transgender relationships. 

The Court of Appeal decided that her Facebook posts were a manifestation of her protected beliefs and the school’s decision to dismiss her was discriminatory.  The School’s response to dismiss her was not proportionate or justified, especially considering her views weren’t expressed at work and didn’t discriminate against pupils.

What happened in Miller?

Dr Miller was a Professor of Political Sociology at the University of Bristol. He was dismissed after making public comments expressing anti-Zionist beliefs and strongly criticising named Jewish student groups.

The tribunal found that his belief was protected under the Equality Act 2010and that his dismissal was discriminatory on grounds of his direct belief.

However, some of his language towards named student groups (ie the manifestation of his belief) went beyond expressing his protected belief and could properly be treated as misconduct.

Because his dismissal was based substantially on comments which were a manifestation of his protected belief, the University should have been able to justify the restriction of his speech and it could not do so.

It was held that Dr Miller’s dismissal was disproportionate when a lesser disciplinary sanction could have been used.

Key issues for employers and HR

The important issues that employers need to separate are:

• the belief itself
• the way the employee expresses it
• and any genuinely objectionable conduct.

An employer can still act if the way the belief is expressed is sufficiently objectionable. But any disciplinary response must be justified and proportionate.

Lessons from Miller – proportionality

Employees can’t say anything they like because it is linked to a protected belief.  But:

1. HR should look carefully at exactly what has been said or done.
2. Ask whether the conduct is closely connected to a protected belief.
3. Then separate that from any inappropriate way in which the belief has been expressed.
4. Consider why disciplinary action is needed – are they trying to protect a legitimate aim?
5. Is the proposed action proportionate?

The more serious the action, particularly dismissal, the more carefully that proportionality needs to be considered.

After Higgs and Miller, proportionality should be a key part of the decision-making process whenever alleged misconduct is linked to a protected belief.

Further reading

• Christian counsellor wins landmark discrimination claim – Hunter Law
• Religion or Belief Discrimination – ACAS

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