• An employee simply holding an objectionable belief is not enough to justify disciplinary action but how it is manifested can be subject to limitations if it impacts the employer or others.

• While employers can take action against objectionable beliefs, such actions must be proportionate and justified.

• Reputational damage caused to the employer by an employee's social media posts must be real rather than speculative.

Background

A pastoral manager employed by a school was dismissed for posts on her own Facebook page (Higgs v Farmor's School and ors). She had reposted the posts of others which expressed concern with the teaching in schools about same sex relationships, same sex marriage and that gender is a matter of choice rather than biology.

A parent complained, saying the manager was homophobic and prejudiced against the LBGT community. Following a disciplinary investigation and procedure, the manager was summarily dismissed for gross misconduct on the basis of potential reputational damage to the school and breaches of the school's code of conduct.

The employee denied holding homophobic or transphobic views and brought claims against the school for direct discrimination and harassment on the ground of religion or belief. While the tribunal accepted that her beliefs were all protected beliefs, it found for the employer and decided that she had been disciplined not because of any discrimination but (a) because of the way she had manifested her beliefs, which was in 'florid and provocative language', and (b) the assumptions of what those beliefs represented, being that a gender critical person is therefore transphobic. The employee appealed.

Learning points from the decision

Discrimination claims are notoriously technical and dependant on the facts, but some useful and immediately practical points can be drawn from the Court of Appeal's decision. This judicial guidance will, for now at least, help employers understand and avoid claims relating to discrimination based on religion or belief. 

• An objectionable belief is not enough to dismiss: An employer cannot dismiss an employee simply because they have expressed a belief that the employer objects to, or which others may object to. It can be lawful to dismiss an employee for the objectionable way in which the belief is manifested, but this must be a proportionate response and it will be for the employer to show that dismissal was proportionate. In this case, while the school was entitled to object because of the language used and the connection between the social media posts and the nature of the employee's work, sacking her was not a proportionate response.
• Evaluate if the language is genuinely offensive: While the employee's posts were objectionable, they were not grossly or gratuitously offensive. She was reposting the language of others and had made it clear to the school that she didn't agree with the language used.
• Out of work setting is key: The forum and the context of what was said is relevant, as well as the content and manner. Something said on a private Facebook page might be unproblematic which, if the same had been said in a work setting, could justify different treatment. However, this does not undermine per se the position that an employee's actions outside of work, including posts on social media, could result in their dismissal. Instead, it shows a more complicated picture, with decisions needing to be based on the facts of each case.
• Reputational damage must be real: There was no evidence that the reputation of the school had been damaged.The employer does not have carte blanche to interfere with an employee's rights to express their beliefs just because third parties might find those beliefs offensive and think worse of it for employing them.Relevant factors to be taken into account include the subject matter, the way in which the beliefs are expressed (noting that the threshold of offensiveness should be high) and whether it is clear that the views expressed are personal to the employee and not the employer.
• Consider if any real effect on employee's standard of work: There was no evidence that the employee's work at the school would be affected: She had an exemplary work record and did not exhibit discriminatory attitudes towards the pupils. There was no reason to doubt her assurances that she would not treat gay or trans pupils differently.
• Lack of insight by employee is not necessarily a problem: In this case it did not matter that during the disciplinary process the employee had not shown any insight into the offensiveness of the posts, nor had she removed them. A lack of insight could, in some cases, justify an employer deciding to dismiss however, this was not that type of case.
• Consideration of non-disciplinary investigation: While the school was acting responsibly by investigating the complaint, it was debateable whether it needed to be disciplinary in nature.

How does this affect employment in the Channel Islands

Guernsey legislation mirrors the language of the English legislation in providing protection from discrimination on the grounds of religion or belief. 

We do not yet have any Guernsey tribunal decisions in relation to religion or belief. However, we expect that the decisions of the English tribunals and courts will be highly persuasive and influential making this case of relevance.

The position in Jersey differs as it does not have statutory protection against discrimination on the grounds of religion or belief. However, the reasoning in this case is still relevant to Jersey employers as the principles relied upon and interpreted in this case stem not only from discrimination law but also from the ECHR rights. Jersey law provides that local legislation must be read in a way that is compatible with the ECHR where possible. 

In this case the Article 9 rights (freedom of thought, conscience and religion including the right to manifest their belief) and Article 10 rights (freedom of expression) were in play and while limitations can be placed on those rights, the interference must be proportionate. So, if this employee had bought her claim in Jersey, she would have likely claimed unfair dismissal and would likely be subject to the same test of proportionality.

Following this decision, employers must tread even more carefully when considering disciplinary proceedings against an employee for manifesting their beliefs in a way the employer finds objectionable or which it fears will damage its reputation. While this decision tips the balance increasingly towards permitting the employee protection, the direction of travel has come under criticism by commentators and we expect further movement in this area.