EAT Provides Welcome Guidance On Proportionality In Belief / Freedom Of Expression Cases

• Published date: 27 June 2023
• Subject Matter: Employment and HR, Discrimination, Disability & Sexual Harassment, Employment Litigation/ Tribunals, Employee Rights/ Labour Relations
• Law Firm: Herbert Smith Freehills
• Author: Mr Peter Frost, Chris Jones and Joshua Peters

In Higgs v Farmor's School, a matter in which this firm acted for the Church of England as Intervenor, the EAT approved new guidance proposed by the Church when deciding whether the actions of employers in restricting the manifestation of a religion or belief and the free speech of an employee would thereby unlawfully discriminate against that employee. In doing so the EAT, again at the request of the Intervenor, gave unambiguous recognition to the foundational nature of the rights to hold and manifest a religion or (protected) belief and of free speech.

The proportionality guidance requires employers to consider a range of factors (see Guidance below) when deciding what action, if any, to take in relation to an employee who has manifested a religion or belief in a way to which either or both of internal or external stakeholders have taken objection. Because the employment tribunal in this case had not applied an appropriate proportionality assessment, Mrs Higgs' appeal against the original decision was allowed and the case was sent back to that tribunal for them to apply the guidance against the facts they had originally found. It is hoped that this clarification will encourage employers and employees to resolve any differences on these issues at the workplace (i.e. through mediation) rather than in the employment tribunal.

Background

Mrs Higgs worked as a pastoral administrator and work experience manager in Farmor's secondary school. She is an evangelical Christian who believes that same sex relationships and gender fluidity are both prohibited by the Bible. Mrs Higgs posted certain content in her private Facebook account objecting to the nature of sex education which she felt normalised same sex relationships and gender fluidity. The language of the posts, which was not Mrs Higgs' own, was later found by the employment tribunal to be "florid and provocative". A complaint was received (from one of her Facebook "friends" who was a parent at the school) that the posts illustrated that Mrs Higgs was both homophobic and transphobic, and expressed concern at the influence that she could exert over vulnerable pupils. Mrs Higgs denied that she was in fact either homophobic or transphobic, but was suspended and put through a disciplinary process. Mrs Higgs stated that she stood by her views, that she was entitled to express those views (although she admitted that on reflection some of the language used was unfortunate) and reiterated that she was neither...