Recent update on managing the manifestation of beliefs in the workplace

The Employment Appeal Tribunal has stepped in again in this controversial arena in this case and has ruled that “the freedom to manifest belief (religious or otherwise) and to express views relating to that belief are essential rights in any democracy”.

This is another decision in the fraught tug of war between employees claiming they have a right to express their gender critical beliefs irrespective of the offence those beliefs may cause to others in the workplace. This clash of protected rights is playing out across companies and organisations and employers are caught firmly in the middle of trying to manage the conflict.

The Forstater case put this issue firmly on the agenda in finding that employees should not be penalised for expressing their protected beliefs but until now employers have lacked guidance to assist them in determining what is a reasonable manifestation of a belief as opposed to comments or actions that cross the line and amount to harassment of other people with protected characteristics.

Case Background

Kristie Higgs (“the Claimant”), a primary school worker was dismissed for gross misconduct in 2019 by Farmor’s School (“the School”) after sharing posts on Facebook concerning the teaching of LGBT+ issues in primary schools. The Claimant complained that her dismissal amounted to direct discrimination under Section 13 Equality Act 2010 and harassment under Section 26 Equality Act 2010 relating to her religious beliefs.

In 2019, the ET dismissed her claims accepting the School’s position that dismissal was not because of the Claimant’s protected beliefs but because her social media posts suggested that she could have homophobic and transphobic views.

The Appeal Judgment

The Honourable Mrs Justice Eady DBE (“Eady LJ”), when handing down her judgment on 16 June 2023, highlighted that case law established that the key consideration for the ET in this case should have been referred to the observations of Underhill LJ in Page[2] and concluded that the difficulty with the ET’s analysis here was whether there was a sufficiently close or direct nexus between the Claimant’s protected beliefs and her posts.

Eady LJ considered all the leading case law on how to assess this matter and concluded that there was a close and direct link between the Claimant’s conduct (in this case posts on social media) and her belief.

Therefore, the EAT allowed the appeal and referred the matter to a re-hearing to determine whether the School’s decision to dismiss was necessary to protect the rights and freedoms of others, while recognising the essential nature of the Claimant’s rights to freedom of belief and freedom of expression.

This is a developing area of the law and we welcome Eady LJ’s guidance in her judgement on the factors to consider when dealing with the interaction of human rights and employment law. In her judgment, Eady LJ set out a series of structured tests for these sorts of situations which are taken almost entirely from human rights law but which seem to almost entirely replace the test for direct discrimination.

The test is as follows:

1. Is the belief protected?
2. If the belief is protected and direct discrimination is pleaded, ‘was there a direct nexus between their conduct and their belief?’ (this relates to what the employee did and not what the employer was thinking)
3. If there was a close and direct nexus, ‘were the employer’s actions prescribed by law’? (in an employment context that’s likely to involve considering whether the Respondent’s rules and policies were clear enough the employee can understand what they are allowed to do in advance and what consequences would be if they broke the rules)
4. Proportionality as per Bank Mellat[3]:
   • Identify the employer’s objective or reason and ask ‘was the objective of the employer’s conduct sufficiently important to justify the limitation of a protected right’.
   • If so, was the measure rationally connected to the objective?
   • If so, could a less intrusive measure have been used without unacceptably compromising the achievement of the objective?
   • Finally, balance the objective against the severity of the impact

Unfortunately, the guidance may help Tribunals in assessing a claim of discrimination for expressing a protected belief but it does not necessarily help employers in managing the conflict arising when an employee exercises that freedom of expression or how an employer is supposed to manage this workplace conflict. This case seems to stretch the boundaries of direct discrimination and it would have perhaps been more helpful to employers to suggest that such arguments should be considered under indirect discrimination tests. That way, the employer has an opportunity to justify their decision making while recognising the rights of the employee.

Key Takeaways

This is a rapidly developing area of law, which juxtaposes the rights of different protected groups. Employers are well versed in assessing discrimination and bullying in the workplace but we have less experience of a situation where the law states that an employee can potentially express opinions in the workplace, which others may find offensive and bullying. Unfortunately, there is no obvious rule as to when a comment crosses the line from a reasonable expression of beliefs to a derogatory and unreasonable manifestation of those beliefs. This is an area where we expect a lot more case law to emerge but accept that our clients do not want to be at the forefront of creating new law.

We would advise that you take a proactive, transparent and practical approach to this issue.

• Review all your policies and procedures including your social media policy, your dignity at work policy and your bullying and harassment (if different). You want to ensure that these policies are still fit for purpose.
• Decide how you as an organisation will deal with this type of conflict in the workplace. We would advise that you work with your established groups such as women’s rights groups and LGBTQ groups in developing processes and procedures. This way you are more likely to ‘buy in’ to the processes you then adopt and an acceptance of how you resolve the issues when they arise. If you do not have special interests groups, it is a good time to think about creating them or to look to creating an employee committee specifically to focus on this development of policies.
• Train your managers on managing conflict in the workplace and handling grievances.
• Train your staff on your policies above and what they mean in practice. This should cover explaining that strongly held views while offensive to one person are not necessarily a breach of conduct. Encourage tolerance and respect and mediated outcomes over disputes and complaints.

Our team at Sharpe Pritchard has a wealth of experience on providing practical and pragmatic advice to employers. We can support you on auditing your existing policies, drafting and consulting on updated policies and training your HR and managers or flexing the policies to suit the situation. Please contact Julie Bann (jbann@sharpepritchard.co.uk) if you have any further queries.

This article is for general awareness only and does not constitute legal or professional advice. The law may have changed since this page was first published. If you would like further advice and assistance in relation to any of the issues raised in this article, please contact us today by telephone or email enquiries@sharpepritchard.co.uk.

[1] Mrs Kristie Higgs v 1) Farmor’s School 2) Archbishops’ Council of the Church of England [2023] EAT 89 EAT 89

[2] Page v NHS Trust Development Authority [2021] EWCA Civ 255

[3] Bank Mellat v HM Treasury (No 2) [2014] AC 700 [83]