Can an employer restrict an employee’s manifestation of religious beliefs?

In the case of Higgs v Farmor’s School, the Employment Appeal Tribunal (EAT) provided helpful guidance in assessing whether an employer’s interference with an employee’s right to freedom of expression constituted unlawful discrimination.

Background to Higgs v Farmor’s School

Mrs Higgs was employed by Farmor’s School as a pastoral administrator and work experience manager. She held religious beliefs that gender cannot be fluid and that an individual cannot change their biological sex or gender. She also did not believe in same-sex marriage. The head teacher received a complaint about a post Mrs Higgs had shared on her Facebook page, which objected to teaching in schools relating to same-sex relationships and gender being a matter of choice. The complainant described it as homophobic and prejudiced against the LGBT community. Following a disciplinary process, Mrs Higgs was dismissed for gross misconduct.

Although her claims of discrimination on the grounds of religion or belief were dismissed by the Employment Tribunal at first instance, the EAT upheld her appeal.

Employment Appeal Tribunal Judgment

The EAT emphasised that individuals are free to express their beliefs, irrespective of whether or not the belief in question is popular and even if some may find it offensive.

However, the manifestation of belief and free expression will not be protected where such manifestation or expression contravenes the rights and freedoms of others.

Any restriction on an employee’s expression of beliefs should be proportionate. The EAT set out relevant factors that should be taken into account when assessing the proportionality of a response to the way an employee has expressed their beliefs:

• the content, tone and extent of the manifestation
• the employee’s understanding of the likely audience
• the extent and nature of the intrusion on the rights of others and any possible impact on the employer’s ability to run their business
• whether the employee has made it clear that their views are entirely personal and do not represent the views of the employer
• whether there is a potential power imbalance with regard to the employee’s position or role and those whose rights are being intruded upon
• the nature of the employer’s business, in particular, whether there are vulnerable service users or clients being intruded upon
• whether the limitation is the least intrusive measure open to the employer.

What does this mean for employers?

Employers must handle any issues arising from situations where employees with strong beliefs express opinions that conflict with the beliefs, rights or freedoms of others carefully and sensitively. Religion or belief is one of the protected characteristics under the Equality Act 2010, and therefore, it would be wise for employers to seek professional advice before taking action with employees in this area.

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