Kristie Higgs v Farmor’s School

Where an employer acts in response to an employee’s expression of protected religious or philosophical beliefs, the tribunal must first decide whether the expression has a sufficiently close and direct nexus with those beliefs. That question concerns the employee’s beliefs, not the employer’s interpretation of the expression.

If there is such a nexus, action taken because of the manifestation is unlawful unless the employer establishes that its objection was to a manner of manifestation which could justifiably be restricted. The tribunal must consider whether the restriction was prescribed by law, pursued a legitimate aim, and was necessary and proportionate under articles 9 and 10 of the European Convention of Human Rights.

The claimant was employed by a secondary school as a pastoral administrator and work-experience manager. Following a parent’s complaint about Facebook posts concerning relationships education, same-sex marriage and gender identity, she was suspended, investigated and summarily dismissed for gross misconduct. Her internal appeal failed.

She brought claims of direct discrimination because of religion or belief and harassment related to religion or belief under the Equality Act 2010. The Bristol Employment Tribunal dismissed both claims, finding that the school acted because readers might regard the posts as homophobic or transphobic, rather than because of the claimant’s protected beliefs.

The claimant appealed. The central issue was whether the tribunal had lawfully determined the reason for the school’s treatment without deciding whether the posts manifested protected beliefs and, if so, whether the restriction on that manifestation was justified.

1. Appeal allowed and matter remitted. The Employment Tribunal erred in its approach to the question why the school had suspended, investigated and dismissed the claimant, and rejected her appeal.

2. The tribunal was entitled to find that the decision-makers had acted from the same underlying concern: that the claimant’s posts could cause readers to regard her as holding unacceptable views about gay and transgender people. That factual finding did not answer whether the posts were a manifestation of her protected beliefs.

3. Applying Eweida, the tribunal had first to determine whether there was a sufficiently close and direct nexus between the posts and the claimant’s beliefs. The school’s interpretation of the posts was irrelevant to that prior inquiry. On the tribunal’s own findings, the posts clearly expressed the beliefs relied on and the required nexus was established.

4. Under Page, an employer may act because of an objectionable manner of manifesting a belief only where that objection is justified. To determine this, the tribunal had to interpret the Equality Act 2010 consistently with articles 9 and 10 of the European Convention of Human Rights. It had to decide whether the measures were prescribed by law and were necessary and proportionate for the protection of others’ rights, freedoms or reputation.

5. The tribunal had not considered whether the school’s code and allegations provided an accessible and foreseeable legal basis for the restriction. Nor had it conducted the proportionality assessment required by Bank Mellat. It was insufficient to characterise the posts as florid or provocative, or to identify a concern that they might be understood as expressing unacceptable views.

6. The remitted tribunal must apply the four-stage proportionality inquiry. In employment cases, relevant context may include the content, tone, extent and audience of the expression; its effect on others and the employer; whether the views were personal; the worker’s role and any power imbalance; the nature of the employer’s activities; and whether a less intrusive measure was available.

• Employment Appeal Tribunal: Appeal allowed in [2023] EAT 89. The claims were remitted for redetermination of the reason-for-treatment issue using the prescribed-by-law and proportionality analysis.
• Bristol Employment Tribunal: By a reserved judgment sent on 6 October 2020, dismissed claims of direct discrimination and harassment under the Equality Act 2010.