Employment Law Case Update: Religion and Belief Discrimination

Every employer should be aware of the nine protected characteristics under the Equalty Act 2010 regarding discrimination against employees; one of which being religion or belief.  Our Employment Law team reviews a case here, Higgs v Farmor’s School, which illustrates how case law surrounding this area of discrimination is still developing.

Mrs Kristine Higgs was employed by Farmor’s School in 2012 until her dismissal in 2019. In October 2018, the school’s head teacher received an external complaint regarding various Facebook posts made by Mrs Higgs that allegedly demonstrated homophobic and anti-LGBTQ views. In one post, Mrs Higgs shared an article written by a third party that discussed teaching school children about same sex relationships, same-sex marriage, and gender fluidity. Mrs Higgs had added “Please read this! They are brainwashing our children!”.

After confirming that the Facebook posts were hers, Mrs Higgs was subject to a disciplinary investigation and hearing. She was subsequently found guilty of gross misconduct and summarily dismissed. Mrs Higgs appealed her dismissal but was unsuccessful.

In April 2019, Mrs Higgs filed a claim with the Employment Tribunal (ET) alleging that her treatment throughout the disciplinary process, including her dismissal, amounted to direct discrimination and harassment due to religion or belief. In her claim, Mrs Higgs listed several specific beliefs for which she alleged she had been discriminated against and harassed. These included a lack of belief in gender fluidity, same-sex marriage, or that a person could change their gender.

The ET began by considering whether Mrs Higgs’ lack of belief in gender fluidity and lack of belief that someone could change their gender were protected beliefs under section 10 of the Equality Act. The ET held that they were protected.  They based this on the reason that, while upsetting to some, such beliefs were “worthy of respect in a democratic society … not incompatible with human dignity and not [in] conflict with the fundamental rights of others.”.

This is a somewhat surprising decision, considering that in two earlier ET decisions, Mackereth and Forstater, the ET held that beliefs similar to Mrs Higgs’ were not protected because they conflicted with the fundamental rights of others and were not worthy of respect in a democratic society.  The ET distinguished Forstater and Mackereth by reasoning that in those cases the claimants’ beliefs required them to unlawfully discriminate against transgender individuals. However in this case, the ET “could see no reason” why Mrs Higgs’ beliefs should “necessarily result in unlawful action.” In reaching this conclusion, the ET had accepted Mrs Higgs’ assertion that despite her beliefs, she “loved everyone” and would never behave in a discriminatory way towards any person.

Having established that her beliefs were protected, the ET then turned to the question of whether there was “a causal connection” between Mrs Higgs’ beliefs and her treatment by the school.

The ET found that the disciplinary process and dismissal were not motivated by Mrs Higgs’ actual beliefs. Rather, the school had acted on the concern that, due to her posts, Mrs Higgs “would be perceived as holding unacceptable views in relation to gay and transgender people”. The school felt that her conduct, “had the potential for a negative impact in relation to various groups of people, namely pupils, parents, staff and the wider community”.

The ET further stated that the disciplinary process conducted by the school was “unexceptional,” and did not have the effect “of violating [Mrs Higgs’] dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment”.

The ET concluded that Mrs Higgs was not directly discriminated against, nor harassed, and her claim was dismissed.

This case muddies the waters regarding whether certain beliefs, particularly regarding LGBTQ people, are protected under the Equality Act. In this case, the ET seems to say that such beliefs will be protected where they do not necessarily result in unlawful action. However, employers should be aware that this case is not binding on future ET decisions and another tribunal may interpret the law differently.

Though it remains unclear when or if an employer can dismiss an employee for holding anti-LGBTQ views, this case also suggests that employers may be able to dismiss an employee if the employee’s conduct creates the perception that they hold unacceptable views towards LGBTQ people and could negatively impact others in the workplace.

Mrs Higgs has indicated she intends to appeal this decision. If the Employment Appeal Tribunal hears her case, it may provide further clarity on this area of employment law.

If you have any questions regarding this article, you can call our Employment team today on 023 8071 7717 or email employment@warnergoodman.co.uk.

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ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.