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Articles Employment 4th Jul 2023

Applying the proportionality test where there is a controversial manifestation of protected characteristics

There continue to be reported cases wrestling with the difficult issues surrounding competing protected characteristics at work.

Higgs v Farmor’s School case background
We’ll look at the case of Higgs v Farmor’s School. Mrs Higgs is a Christian and worked as a pastoral administrator and work experience manager in a secondary school. The school received a complaint from a parent that Mrs Higgs had posted comments on Facebook that were critical of teaching in primary schools about same-sex marriage and gender being a matter of choice and not biology. Following an investigation and disciplinary hearing, she was dismissed for gross misconduct.

The discrimination claim and protected beliefs
Mrs Higgs brought claims of discrimination and harassment on grounds of religion or belief. The Employment Tribunal dismissed her claims, finding that the school’s reason for its actions were concerns that someone reasonably reading the posts could reasonably consider that she held transphobic and homophobic views, and not on grounds of her protected beliefs.

Employment Appeal Tribunal (EAT) decision
Mrs Higgs appealed to the EAT, who upheld her appeal and have remitted the case to the Tribunal because the EAT did not consider that the Tribunal had applied the correct test.

The basic principles are that a person’s right to manifest their religion or belief should only be interfered with if such interference has a legal basis, is necessary in a democratic society and is proportionate. It is established law that it will not be unlawful for an employer to dismiss an employee, not because of their religion or belief, but because of the inappropriate manner in which they manifested it. Whether an individual’s manifestation of their belief is inappropriate is subject to a proportionality test, balancing Mrs Higgs’ freedoms to hold her religious views against the legitimate interests of her employer and others. The EAT found that the Tribunal had failed to consider the necessity of the measures taken by the school, and had therefore failed to apply the correct “proportionality” test, so the matter would be remitted to the Tribunal for it to apply the correct test to the facts.

Handling protected characteristics at work
Because all of these cases of competing religious or ethical views are complex and fact-specific, the EAT were reluctant to set out fundamental rules that have to be applied in every case, but they did offer some guidance as to the factors that might be taken into account in determining whether the manifestation of the belief was so objectionable as to justify the action taken by the employer:

  • The content of the manifestation
  • The tone used
  • The extent of the manifestation
  • The worker’s understanding of the likely audience
  • The extent and nature of the intrusion on the rights of others, and any consequential impact on the employer’s ability to run its business
  • Whether the worker has made clear that the views expressed are personal, or whether they might be seen as representing the views of the employer, and whether that might present a reputational risk
  • Whether there is a potential power imbalance given the nature of the worker’s position or role and that of those whose rights are intruded upon
  • The nature of the employer’s business, in particular where there is a potential impact on vulnerable service users or clients
  • Whether the limitation imposed is the least intrusive measure open to the employer

The Employment Tribunal will now need to apply the correct test and it remains to be seen whether its decision to dismiss Mrs Higgs’ claim remains the same.

Another point of interest: EAT lay member recused
As an aside, another point of interest in this claim was that prior to the EAT hearing, one of the EAT lay members was required to recuse themselves and to be replaced by a different lay member because of tweets that she herself had sent which indicated support for the provision of transgender affirming education in primary schools and association with a transgender campaigning group. Whilst the lay member indicated that any decision she made on the appeal would be based on the law and not her personal beliefs about the underlying issue, the EAT considered that the risk of apparent bias was too great and she was recused.

If you have any queries on this article or need any employment law advice, please get in touch with Rena Magdani or Matt McBride.

Read the other topical article from our July 2023 Employment Law Update:

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The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.

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