Discrimination - competing protected characteristics

The potential for expensive mistakes

There are nine protected characteristics set out in the Equality Act 20210, which seeks to protect employees with those characteristics from being discriminated against.

Protected characteristics include age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. Issues can arise where there is a “clash” of protected characteristics, for example where an employee expresses their religious beliefs about sexual orientation.  

The recent Court of Appeal decision of Higgs v Farmor’s School has highlighted again the issues that employers have to consider where there are competing protected characteristics and the fine line between getting these decisions right or making an expensive mistake. 

Background

In this case Ms Higgs (a Christian) was an administrator and work experience manager for the school. She worked with pupils and had contact with parents. She had reposted some messages on her personal Facebook page which were critical of the current sex education regime at schools, with a particular focus on the teaching in schools of same-sex relationships, same-sex marriage and gender being a matter of choice. The posts used phrases such as “brainwashing our children” and the “LGBT crowd”, although the posts were not Ms Higg’s own. A parent had complained to the head teacher suggesting that the posts demonstrated that Ms Higg held homophobic and prejudiced views, and that category would include several children at the school.    

The school considered this was compounded by the fact that Ms Higgs had not removed the posts and so could potentially be seen by others who may have similar objections to the person who had already complained. The school considered this a potential risk of harm to the school’s reputation. On the basis of those conclusions, Ms Higgs  was dismissed for gross misconduct.

Ms Higgs brought claims of direct discrimination and harassment on the ground of her protected religious beliefs (including a lack of belief in gender fluidity and same-sex marriage etc). An Employment Tribunal accepted that her beliefs were protected under the Equality Act but that she had not been directly discriminated against or harassed because of those beliefs. The Tribunal’s view was that her dismissal was as a result of the “provocative” language in the posts, which might reasonably be perceived as her holding homophobic and transphobic beliefs.

On appeal, the EAT held that the Tribunal should have considered whether there was a sufficiently close connection between her protected beliefs and the facebook posts. It ordered the case to be remitted to the Tribunal to consider whether the dismissal was a proportionate response when considered against Ms Higgs’ rights to freedom of belief and expression. However, Ms Higgs felt that the EAT should have gone further and upheld her claim and therefore she appealed to the Court of Appeal.

The Court of Appeal allowed Ms Higgs’ appeal and substituted a finding that her dismissal constituted unlawful direct discrimination on the ground of religion or belief.

The Court of Appeal noted that whilst some of the language in the posts was objectionable, a dismissal in those circumstances will only be lawful if the employer can show that it was an objectively justified proportionate response. It held that, if remitted, the Tribunal would be bound to find that Ms Higg’s dismissal was discriminatory and not objectively justified given that the posts were not grossly or gratuitously offensive and the objectionable language was not Ms Higgs’ own. There was also no evidence that the reputation of the school had in fact been damaged (with the disciplinary panel more concerned about potential future reputational damage).  The posts were on the claimant’s personal account, in her maiden name, and made no reference at all to the school. Also, the school accepted that there was likely no possibility that readers of the posts would assume that those posts were representative of the views of the school itself. By the date of the dismissal hearing, only one person was known to have recognised Ms Higgs as an employee of the school and the school accepted that there was no evidence that Ms Higgs’ work would be affected by her views.

The Court held that an employer does not have carte blanche to interfere with an employee’s expression of their protected beliefs simply because a third party may find those beliefs offensive and, even where there is a risk of reputational damage to the employer, the interference must still be proportionate.

Conclusion

Employers must be aware that there a number of factors they should consider when approaching a dismissal or other disciplinary action in the context of protected characteristics.

This case clearly shows that an employer does not have the right to take action against an employee simply because a third party finds the employee’s beliefs (or the way in which they are expressed) objectionable. Various considerations must be taken into account and the employer’s response must be proportionate to be objectively justifiable and, therefore, lawful.

There is always a balance to strike in this type of case where beliefs clash with other protected characteristics. In a world where culture clashes and views can be amplified by social media employers need to recognise that simply being swept along by one particular point of view may well have costly consequences and any decisions need to be carefully taken and managed.