Can an employer dismiss an employee due to their expressed views?

Employers may think that they can dismiss an employee if the employee publicly expresses views that the employer or others may find objectionable or offensive, even if those views are expressed outside of work, such as on social media sites. After all, most employment contracts contain clauses which state that an employee bringing the employer into ‘disrepute’ can constitute gross misconduct.

However, a recent Court of Appeal decision found that dismissing an employee for expressing a religious or philosophical belief can amount to direct discrimination, unless the employer can objectively justify the treatment.

Higgs v Farmor’s School

Mrs Higgs was a counsellor at a secondary school. She was dismissed on the grounds of gross misconduct after she shared some Facebook posts related to her Christian beliefs, which criticised sex education in primary schools.  The posts were promoting petitions about the teaching of same-sex relationships, marriage and gender identity.

A complaint was made by a parent at the school that Mrs Higgs had posted views that were homophobic and prejudiced against trans people.

Mrs Higgs claimed that her dismissal was discriminatory on grounds of her protected religious belief, namely that the nature of biological sex is immutable and that marriage should be between heterosexual couples.

The school did not dispute the fact that Mrs Higgs’ views were religious or philosophical beliefs protected by the Equality Act 2010. The school argued that the dismissal was justified on the ground that the Facebook posts were ‘insulting’ towards those who disagree that biological sex is immutable and  had been reported by one parent and may lead people who read them to conclude that she was homophobic and transphobic.

While the Court of Appeal acknowledged the posts were “intemperately expressed”, it held that the dismissal was not a proportionate response to the expression of those beliefs, as they were not expressed in the workplace or directed at students. The Court found that the dismissal was not justified on the basis of the language used, nor the risk of reputational damage.

Protected beliefs

Religion or belief is a protected characteristic under the Equality Act 2010. “Belief” is defined as “any religious or philosophical belief and a reference to belief includes a reference to a lack of belief”.

Direct religion or belief discrimination occurs where, because of religion or belief one person treats another less favourably than they would treat others.

The courts have had to grapple with applying this law to cases where the employer says that it is not the belief itself, but the way in which the employee manifested that belief, which led to the decision to dismiss.  As was the case in Higgs.

The Higgs case highlights that employers cannot simply dismiss employees solely for holding and expressing unpopular or offensive views, especially if those views are expressed outside the workplace and do not directly impact the employee’s conduct at work.

Where the dismissal is motivated by the objectionable way in which the belief is manifested, the dismissal will only be lawful if the employer can show that it was an objectively justified proportionate response.

Employer ramifications

The ruling highlights that employers must carefully consider the proportionality of any action taken against an employee for expressing beliefs that others may find objectionable, particularly outside of the workplace.

Following this decision, it may be difficult in practice for an employer to discipline or dismiss an employee for manifesting their beliefs in a way that the employer finds objectionable. Any such action will need to be proportionate if the employer is to avoid liability for discrimination.  From Higgs it is apparent that this will involve considering:

1. The content, tone and extent of the objectionable manifestation of the belief
2. The employee’s understanding of the likely audience
3. The nature of the business and whether there is an impact on the running of the business
4. Whether there is intrusion on the rights of others
5. Whether there is a real risk of reputational damage to the employer
6. Whether the sanction is the least intrusive measure open to the employer.

This case gives some guidance on how courts will balance these competing rights.  It introduces a proportionality exercise into the test for direct discrimination on the grounds of religious or philosophical belief.  This is novel as it was previously understood that direct discrimination could never be justified, except for age discrimination.

This is not an easy exercise to carry out.  Employers still face a significant ongoing challenge to balance the rights of all individuals in the workplace and complaints by external parties.

If you require advice in relation to any of the issues raised in this article, the experienced Employment team at Thomson Snell & Passmore would be happy to assist.