Sarah Fraser Butlin successfully intervenes on behalf of the Archbishops’ Council in case of manifestation of belief.
Written by Cloisters
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The President of the EAT has given important guidance on cases of manifestation of belief after Sarah Fraser Butlin successfully intervenes on behalf of the Archbishops’ Council
In Higgs v Farmor’s School, the Appellant worked as a school pastoral administrator and work experience manager. She was dismissed after complaints about Facebook posts she had made relating to relationships education in primary schools, The EAT upheld her appeal against the ET’s rejection of her claims of direct discrimination because of, or to harassment relating to, her protected beliefs. The EAT held that there was a close or direct nexus between the claimant’s Facebook posts and her protected beliefs. When determining the reason why the respondent had acted as it had, the ET had been required to assess whether there was a distinction between an objectionable manifestation of a belief and the manifestation of the belief itself through the lens of the essential nature of her Article 9 and 10 rights to freedom of belief and freedom of expression. Therefore the ET had been required to assess whether those actions were prescribed by law and were necessary for the protection of the rights and freedoms of others. In order to determine whether the respondent’s actions were because of, or related to, the manifestation of the claimant’s protected beliefs or were in fact due to a justified objection to the manner of that manifestation, a proportionality assessment was required.
The EAT laid down guidelines, in light of the Intervenor’s submissions, underpinning the approach to be taken to the proportionality assessment:
The foundational nature of the rights must be recognised: the freedom to manifest belief (religious or otherwise) and to express views relating to that belief are essential rights in any democracy, whether or not the belief in question is popular or mainstream and even if its expression may offend.
Those rights are, however, qualified. The manifestation of belief, and free expression, will be protected but not where the law permits the limitation or restriction of such manifestation or expression to the extent necessary for the protection of the rights and freedoms of others. Where such limitation or restriction is objectively justified given the manner of the manifestation or expression, that is not, properly understood, action taken because of, or relating to, the exercise of the rights in question but is by reason of the objectionable manner of the manifestation or expression.
Whether a limitation or restriction is objectively justified will always be context specific. The fact that the issue arises within a relationship of employment will be relevant, but different considerations will inevitably arise, depending on the nature of that employment.
It will always be necessary to ask (per Bank Mellat): (i) whether the objective the employer seeks to achieve is sufficiently important to justify the limitation of the right in question; (ii) whether the limitation is rationally connected to that objective; (iii) whether a less intrusive limitation might be imposed without undermining the achievement of the objective in question; and (iv) whether, balancing the severity of the limitation on the rights of the worker concerned against the importance of the objective, the former outweighs the latter.
In answering those questions, within the context of a relationship of employment, regard should be had to: (i) the content of the manifestation; (ii) the tone used; (iii) the extent of the manifestation; (iv) the worker’s understanding of the likely audience; (v) the extent and nature of the intrusion on the rights of others, and any consequential impact on the employer’s ability to run its business; (vi) whether the worker has made clear that the views expressed are personal, or whether they might be seen as representing the views of the employer, and whether that might present a reputational risk; (vii) whether there is a potential power imbalance given the nature of the worker’s position or role and that of those whose rights are intruded upon; (viii) the nature of the employer’s business, in particular where there is a potential impact on vulnerable
The case was remitted to the same ET to consider whether the School’s actions were prescribed by law and were necessary for the protection of the rights and freedoms of others, undertaking a careful proportionality assessment.