Free speech, protected beliefs and discrimination: EAT lays out the 'ground rules' that apply in the workplace

Over the last few years, we've seen an increase in the number of clients asking for advice on how to deal with staff who have expressed views on their social media accounts which are at odds with the organisation's ethos or have upset other members of staff. Despite the fact there's a lot of decided cases on this issue, it can be difficult to draw firm conclusions because each case turns on its own facts and there's no 'one size fits all' approach.  

However, we do now have some helpful guidance, courtesy of the EAT in Higgs v Farmor's School. In that case the EAT had to determine whether an employee had been discriminated against because of her Christian and gender critical beliefs, or because of the way she had expressed those beliefs in a social media post. 

Facts

Mrs Higgs worked in a secondary school as pastoral admin and work experience manager, positions which put her in direct contact with children. She re-posted someone else's post on her Facebook page which objected to the government's consultation on relationship & sex education in primary schools. The post said that it normalised single sex relationships, presented gender as a matter of choice, suppressed Christianity and "brainwashed" children. 

A parent complained to the school and Mrs Higgs was asked about the post. She said that she was "not against gay, lesbian or transgender people" but did object to government policy and wanted to raise awareness of this. She said that she didn't regret making the post, but acknowledged that she should have used her own words to express her feelings. She made it clear that her views wouldn't impact on how she interacted with children at the school. 

The school dismissed her for gross misconduct. It said that she had breached its written code of conduct which prohibited 'illegal discrimination' and social media posts which could bring the school into disrepute. It regarded her language as 'inflammatory' and 'quiet extreme' and concluded that this amounted to harassment. She lost her appeal and brought a claim against the school for direct religion/belief discrimination or harassment.

The tribunal dismissed her claim. It said that she had been dismissed for the way in which she had expressed her protected beliefs - not because she held those beliefs. It said that a reasonable reading of her post was that she was homophobic and transphobic. Mrs Higgs appealed.

EAT decision

The EAT said that protection isn't limited to allowing people to hold specific beliefs.  Article 9 (freedom of thought, conscience and religion) and Article 10 (freedom of expression) of the European Convention on Human Rights gives people a right to 'manifest' those freedoms too. Manifest in this context means making their beliefs known to others through their actions or words. However, these rights can be limited or restricted by law, to meet a legitimate aim, and where it's necessary in a democratic society. In a work context, legitimate aims are usually linked to the rights and freedoms of other people or the reputation of the employer.  

Applying this to the facts of the case, the EAT said that the tribunal should have asked itself whether Mrs Higgs was dismissed because of, or for a reason that related to, the way she had expressed her protected beliefs. To answer this it needed to decide if there was a close enough connection between Mrs Higg's beliefs and her post. The tribunal hadn't properly answered this question and had made a fundamental mistake by viewing her behaviour through the 'prism' of the employer's views. 

The key question was whether the school could justify limiting Mrs Higg's right to express her beliefs in the way it had. The tribunal hadn't dealt with this and the EAT remitted the case to the tribunal to determine.

Why this case matters

Although we don't know whether Mrs Higgs will ultimately succeed with her claim, the EAT set out some basic principles all employers need to be aware of. These are:

1. The right to hold a belief (religious or otherwise) and express views on it are essential, whether or not the belief in question is popular or mainstream, and even if its expression offends others.
2. Those rights are qualified and can be restricted by law to the extent needed to protect the rights and freedoms of others (legal restrictions will include employer policies and procedures, provided they are accessible to staff and explain what could happen if they disobey the rules). An employer has to objectively justify any restrictions it imposes on its staff and, provided it can do so, it will be able to discipline staff if they express themselves inappropriately.
3. But, each case has to be assessed individually. While it may be appropriate to limit what some people can say on their own accounts, that doesn't mean that everyone's rights should be limited. [This suggests that employers should avoid 'blanket' rules that apply to all members of staff.]
4. In all cases, an employer needs to ask itself (1) whether its rules etc are important enough to justify being limited? (2) Are the rules connected to that objective? (3) Is there a less intrusive way of achieving the same objective? And (4) whether the severity of the rules on the employee are more important than the objective.
5. To help employers weigh up those questions, they should consider what the employee has said or done, the tone used, the employee's understanding of the likely audience, whether they've made it clear that their views are personal and whether that presents a reputational risk to the business, whether those views could impact vulnerable service users or clients, and if there is a potential power imbalance between the employee (and their role) and those whose rights are being intruded upon.

Our view

Whilst it is true that we have more in common than that which divides us, it's not easy for employers to deal with fundamental differences in values or beliefs between colleagues or people they come into contact with.   

It is sensible to have policies in place which set out the standards of behaviour you expect your staff to follow, but it's important not to be too restrictive about what they can say, or do, in their own time, particularly where their comments or profile don't reference you as their employer. Employees are entitled to hold and express views on controversial matters of public interest even when those views offend, shock or disturb others or don't align with your EDI values. 

It's also worth evaluating your approach to disagreement. Organisations that expect and welcome dissenting views are likely make better decisions and be mentally healthy places to work. They provide an environment where employees are able to speak up, whether they're sharing ideas, asking questions, expressing concerns or acknowledging mistakes. These environments provide 'psychological safety' and allow staff to bring their whole self to work. 

Of course, that doesn't mean that staff can say what they want about other people. All colleagues should treat each other with respect and courtesy - particularly when they have a difference of opinion. 

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