In discrimination claims for manifestation of a religion or belief, does a tribunal have to decide whether an employer’s actions were motivated only by the objectionable manifestation of a religion or belief, rather than the belief itself?
Yes, held the EAT in Higgs v Farmor’s School.
The Claimant was a school administrator/manager, dismissed after some of her social media posts relating to relationships education and religion led to complaints that she had prejudiced views. Her tribunal claim for direct discrimination/harassment related to religion or belief failed. On appeal, the EAT overturned the tribunal’s decision and sent the case back for further findings.
The tribunal's judgment did not show that it had considered if the respondent’s actions were proportionate as an interference with the claimant’s right to freedom of religion or that the tribunal had carried out the necessary balancing exercise between the interference with that right and the respondent’s objectives in taking action. It was not enough for the tribunal to find that the respondent was motivated by a concern that the claimant could be perceived to hold “wholly unacceptable views”; it needed to consider whether the respondent’s motivation had arisen out of the claimant’s manifestation of belief (protected under the Equality Act), or by a justified objection to that manifestation of belief, not protected.
The EAT declined to lay down general guidelines for ‘manifestation’ cases as they are inevitably fact-specific, require nuanced decision-making and there is no “one size fits all” approach. It did however, refer to three key cases to consider (Eweida, Bank Mellat and Page) and at paragraph 94 set out five principles to consider in the employment context.
Thanks to Ed McFarlane for preparing this case summary.