Dismissal in relation to the manifestation of religious beliefs was discriminatory

In a recent case, Higgs v Farmor’s School, the Court of Appeal overturned decisions of the employment tribunal and Employment Appeal Tribunal, finding that a dismissal in relation to the manifestation of religious beliefs was discriminatory.

The claimant, a Christian, was employed as a pastoral administrator and work experience manager by the respondent before being dismissed on the grounds of gross misconduct, specifically that their posts constituted harassment on the grounds of sexual orientation and/or gender reassignment, inappropriate use of social media that could bring the school into disrepute, and breach of the school’s code of conduct.

After losing an initial employment tribunal claim for discrimination because of their religious belief, the claimant successfully appealed with the case eventually reaching The Court of Appeal.

The Court of Appeal found that although the language used by the claimant may have been objectionable to some parties, it was not grossly offensive and neither did it damage the reputation of the school; at least no evidence was provided that this was the case, as would be required for such a finding to be upheld.

In relation to discrimination, the Court held that the employee had merely expressed a religious or other protected belief and that it was this expression that resulted in their dismissal. The respondent’s reaction in dismissing was not proportionate to the way that this belief was expressed. In finding this, they held that the dismissal could not be objectively justified; it was a disproportionate response and discriminatory.

In its summary of its own judgement, the Court made it clear that the dismissal of an employee merely because they have expressed a religious or other protected belief to which the employer, or a third party with whom it wishes to protect its reputation, objects will constitute unlawful direct discrimination under the Equality Act.

A dismissal could be lawful if motivated not simply by the expression of the belief itself (or a third party’s reaction to it) but by something objectionable in the way in which it was expressed, determined objectively, but only if, the employer shows that it was a proportionate response to the objectionable feature.

This case highlights the complexity of cases that relate to the manifestation of protected beliefs. Dealing with these cases requires a careful balance between the freedom of individuals to express their protected beliefs and the need to protect the employer’s reputation and interests, those of its other employees, and others involved with the organisation.

This case shows the importance of context when deciding how to deal with similar incidents. This includes what has been said, how it was said (and/or where if shared on social media), the audience it has or could have reached, and the extent that the organisation is connected to what was said. For example, is the employer referenced in any way, or is it obvious from the individual’s social media presence that they are an employee of the organisation; could they been seen as speaking for the employer?

Check our BrAInbox for instant answers to questions like:

What is discrimination?

Can employees be disciplined for social media posts?