Manifestation Of Religion Or Belief

• Published date: 15 September 2023
• Subject Matter: Employment and HR, Discrimination, Disability & Sexual Harassment, Employment Litigation/ Tribunals, Employee Rights/ Labour Relations
• Law Firm: Simons Muirhead & Burton
• Author: Ms Laura Livingstone and Aysu Haker

It is undeniable that social media is a powerful tool to help spread information and support the expression of one's views but, where is the line drawn when it comes to such expression in the employment context? When can one's private social media activity pose a threat to their employment?

In the recent Employment Appeal Tribunal (EAT) case of Higgs v Farmor's School [2023] EAT 89, the Claimant, an employee of the Farmor's School was dismissed for gross misconduct following a complaint about her personal Facebook posts, which were described as 'homophobic' and expressing 'prejudiced views against the LGBTQ+ community'. There was a particular concern over the posts given that the Claimant in her role, worked alongside LGBTQ+ pupils and created the perception that she held 'unacceptable views in relation to gay and trans people' contrary to the Equality Act (EqA) 2010'.

"Religion" and "belief" are protected characteristics under the EqA 2010 and the Act defines belief widely to mean 'any religious or philosophical belief' or even a lack of belief. Following her dismissal, the Claimant brought a claim in the Employment Tribunal (ET) claiming harassment and direct discrimination on account of this protected characteristic. The claim was unsuccessful in the ET and prompted a subsequent appeal to the EAT.

While the Claimant is of the Christian faith, it was not her case that she had been directly discriminated on this basis. Rather, the Claimant was arguing that she was discriminated or harassed for her:

1. Lack of belief in "gender fluidity";
2. Lack of belief that someone could change their biological sex/gender;
3. Belief in marriage as a divinely instituted life-long union between one man and one woman;
4. Lack of belief in "same sex marriage" (contrary to the teachings of the bible)
5. Opposition to sex and/or relationship education for primary school children;
6. A belief that when unbiblical ideas or ideologies are promoted, she should publicly witness to Biblical truth;
7. A belief in the literal truth of the Bible

The appeal was allowed by the EAT who concluded that the Tribunal in the first instance had not properly assessed the nature of the post and whether it was a manifestation of the claimant's beliefs, resulting in the case being remitted back to the ET for judgment.

So what went wrong? It was held that the ET should have firstly assessed if there was a 'sufficiently close or direct nexus between [the Claimant's] beliefs and her Facebook posts'. Once this had...