‘Heat of the moment’ resignations and dismissals
The EAT held that an Employment Tribunal erred finding that an employee’s resignation in the heat of the moment was really intended.Read more
Higgs -v- Farmor’s School involved a pastoral administrator and work experience manager who was dismissed following complaints about her prejudiced views expressed on social media.
Ms Higgs made public posts criticising the nature of sex education in her son’s primary school (not the school she was employed by) and, in particular, the teaching about LGBTQ+ relationships and ‘gender fluidity’ and encouraged the signing of a petition against plans to make such teaching compulsory for children of primary school age.
Ms Higgs alleged that her dismissal was discriminatory on grounds of her:
Although her initial tribunal claim for direct discrimination/harassment related to religion or belief was unsuccessful, the Employment Appeal Tribunal (EAT) overturned the decision and remitted the case for further findings.
The EAT found that the tribunal failed to adequately consider crucial aspects of the case. Specifically, it did not assess whether the employer’s actions were proportionate as an interference with the claimant’s right to freedom of religion under Article 9 of the European Convention on Human Rights. Furthermore, the tribunal did not conduct the necessary balancing exercise between the interference and the employer’s objectives in taking action.
One crucial point highlighted by the EAT was the need for tribunals to determine whether an employer’s actions were motivated solely by the objectionable manifestation of a religion or belief, rather than the belief itself. It is not sufficient for the tribunal to establish that the employer was concerned about the claimant being perceived as holding “wholly unacceptable views”. Instead, they must examine whether the motivation stemmed from the claimant’s protected manifestation of belief or a justified objection to that manifestation.
The EAT acknowledged that ‘manifestation’ cases are highly fact-specific and require nuanced decision-making. Consequently, it refrained from providing general guidelines, recognising that there is no ‘one size fits all’ approach. However, it referred to previous case law and outlined five principles that employers should consider. These principles provide guidance for assessing the proportionality of interference with freedom of religion, belief, and expression within an employment setting:
Conduct a thorough assessment: Employers must carefully assess the motivations behind their actions concerning an employee’s manifestation of religion or belief. Ensure that the concern is directed towards the manifestation rather than the belief itself.
Consider proportionality: When interfering with an employee’s right to freedom of religion, employers must carefully evaluate whether their actions are proportionate in light of the circumstances and objectives they aim to achieve.
Balance competing interests: Employers should conduct a fair and thorough balancing exercise, weighing the potential interference with the employee’s rights against their own legitimate objectives or justifiable objections.
Fact-specific analysis: Recognise that each case involving the manifestation of religion or belief is unique. Consider the specific facts, circumstances, and context surrounding the claim when assessing potential discrimination.
Seek legal advice: Discrimination cases can be complex, and their outcomes significantly impact both employees and employers. It is prudent to consult with legal professionals to ensure compliance with applicable laws and regulations.
The Higgs -v- Farmor’s School case highlights the importance of understanding the nuances surrounding discrimination claims related to the manifestation of religion or belief. Employers must navigate these matters with care, considering the motivations behind their actions, proportionality, and the need for a fair balance between competing interests. By staying informed and seeking legal guidance when needed, employers can mitigate risks and promote an inclusive and respectful work environment for all employees.
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