Liverpool: 0151 224 0500   |   Manchester: 0161 827 4600   |   Email:   |   Twitter Icon  |  Linkedin Icon

Religion and belief discrimination – manifestation of belief and how employers need to tread-carefully in action taken as a result

Adrian Fryer

In the recent case of Higgs v Farmor’s School the claimant was dismissed from her role as a pastoral administrator after putting posts on Facebook which criticised aspects of relationship education in primary schools which she saw as contrary to Biblical teaching. She was dismissed by the respondent on the basis that someone reading the posts might consider that she held homophobic and transphobic views. She claimed direct religion or belief discrimination and harassment. Her claim was unsuccessful in the employment tribunal but her appeal to the Employment Appeal Tribunal was allowed. The EAT, in finding that the tribunal had incorrectly applied the test for direct religion or belief discrimination, set out some helpful guidance on the approach to be taken in such cases:

  • Direct religious discrimination cannot generally be justified
  • The law protects not just the religion or belief of the individual, but also manifestations of those beliefs.
  • In deciding whether an act is a manifestation of a religion or belief what should be looked for is a “sufficiently close and direct nexus between the act and the underlying belief” (Eweida v United Kingdom). The EAT held that the nexus existed in this case.
  • Once a finding has been made that the act which led to the alleged unfavourable treatment (here, dismissal) was a protected manifestation of religious belief, there is then a requirement to decide the reason why this treatment occurred: whether it was related to the manifestation of the protected belief or due to an objection to the manner of that manifestation.
  • If it is an objection to the manner of the manifestation then Article 9.2 of the European Convention on Human Rights (ECHR) kicks in, under which the right to manifest a belief may be restricted if it is necessary in a democratic society, in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others. In looking at this, account needs to be taken of the fact that the ECHR protects freedom of speech and freedom of religion and the right to express views in a forthright and passionate manner. It is also important to consider whether the restriction (here, dismissal) has gone further than is necessary and whether a less intrusive response would have achieved the same objective (in which case the act may still be held to be discriminatory).

Adrian Fryer, Partner & Head of Employment

t: 0151 224 0539