There is perhaps some guidance for employers in the Employment Appeal Tribunal (EAT) decision in Higgs v Farmor’s School. Here, Higgs, a teacher was dismissed for posts she made on Facebook criticising the nature of sex education in schools and, in particular, the teaching of ‘gender fluidity’. The EAT took the view that there was a sufficiently close and direct connection between Higgs’ conduct and her beliefs that the posts constituted manifestations of her beliefs under Article 9 of the European Convention on Human Rights. The EAT therefore found that the employment tribunal (which had rejected Higgs’ claim) ought therefore to have undertaken a proportionality assessment to determine whether the school’s actions in disciplining and dismissing Higgs were because of, or related to, the manifestation of her protected beliefs, or were instead due to a justified objection to the manner of that manifestation.
The EAT went on to set out some ground rules for assessing the proportionality of any interference with rights to freedom of religion and belief and freedom of expression:
- The freedom to manifest belief is an essential right in any democracy, whether or not the belief in question is popular or mainstream and even if its expression may offend
- The manifestation of belief will be protected but not where the law permits the limitation of such manifestation to the extent necessary for the protection of the rights and freedoms of others.
- Whether a limitation or restriction is objectively justified will always be context-specific.
- It will always be necessary to ask: (i) whether the objective the employer seeks to achieve is sufficiently important to justify the limitation of the right in question; (ii) whether the limitation is rationally connected to that objective; (iii) whether a less intrusive limitation might be imposed; and (iv) whether, balancing the rights of the worker concerned against the importance of the objective, the former outweighs the latter.
- In an employment relationship, regard should be had to: (i) the content of the manifestation; (ii) the tone used; (iii) the extent of the manifestation; (iv) the worker’s understanding of the likely audience; (v) 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; (vi) 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; (vii) 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; (viii) the nature of the employer’s business, in particular where there is a potential impact on vulnerable service users or clients; (ix) whether the limitation imposed is the least intrusive measure open to the employer.
Although this should not, in any sense, be a ‘tick-box’ exercise, the above does give some clear guidance to employers on the consideration that they should be giving prior to disciplining employees who have sought to manifest their belief in a way that others might find objectionable.
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For any further information please contact Jon Taylor at EMW Law LLP.