Until recently, direct discrimination was understood as treating someone unfavourably because of a protected characteristic. This type of discrimination could not, except in age discrimination cases, be justified. However, religion or belief discrimination presents unique challenges. Unlike other protected characteristics (for example, race and sex) that simply exist, religion or belief requires the manifestation to be meaningful. If you hold a belief, it doesn’t mean anything unless you are able to tell people about it. It is this which puts religion or belief discrimination in a particularly interesting position.
Legal position on direct religion or belief discrimination
- If an employer treats an employee unfavourably due to their religion or belief, it constitutes direct discrimination, with no defence. Dismissing someone for being Christian, for example, is unlawful.
- Article 9 of the European Convention on Human Rights protects the freedom of religion and belief. Our laws must be interpreted in line with this right. It includes the right to act on beliefs – referred to as ‘manifestation of belief.’
- Whether something is a manifestation of a belief depends on whether there is a close connection between the belief and the actions.
- If an employer treats an employee less favourably because of a manifestation of their belief then this can bedirect discrimination. However, if unfavourable treatment is not because of the manifestation of beliefs itself but because of the objectionable way the employee manifested them then the action will be lawful if, but only if, the employer shows that the treatment was a proportionate response to the objectionable feature.
The long and short of it is that we now have a ‘gloss’ on direct discrimination – specifically for religion or belief. Employers cannot treat employees unfavourably because of their religion or belief or because of a manifestation of their religion or belief unless the manifestation was objectionable and the treatment justified as a response.
Case study: Higgs v Farmor’s School
The Court of Appeal handed down judgment in this case yesterday. It concerns a Christian Claimant who was a secondary school counsellor. She was sacked for gross misconduct following Facebook posts she had made criticising relationship education in primary schools. Her criticism focused on transgender issues. She claimed that her dismissal was discriminatory on the grounds of her religious belief – both a lack of belief that someone could change their biological sex and a belief that marriage is an institution between a man and a woman. The Respondent argued that they had dismissed her, not for manifesting her beliefs, but for the objectionable way in which she had done so: the language used in the posts and its potential to damage the school’s reputation. The Court of Appeal held that the act of dismissing the Claimant was direct religious discrimination. Neither the language of the posts nor the risk of reputational damage were capable of justifying the Claimant’s dismissal in circumstances where she had not said anything of the kind at work or displayed any discriminatory attitudes in her treatment of pupils.
Guidance on workplace response to manifestations of religion or belief
The Court of Appeal in Higgs reaffirmed key principles from the EAT regarding the balance between religious freedom and workplace restrictions:
- Individuals are entitled to manifest their beliefs, even if controversial or offensive to others.
- Employers can restrict manifestations if necessary to protect others’ rights and freedoms.
- Justification for such limitations depends on the case, requiring assessment of:
- whether the employer had a good enough reason.
- whether the employer took the least intrusive route to achieve its objective; and
- whether the objective outweighed the limitation of the employee’s rights.
To aid employers, the EAT outlined key factors to consider:
- Content and tone of the manifestation.
- Extent of the manifestation.
- Audience awareness—did the employee expect a wide or limited reach?
- Impact on others’ rights and the employer’s business.
- Representation—was it clear the views were personal, or could they be seen as the employers?
- Power imbalance—was there a risk of coercion, especially in positions of influence?
- Business nature—was there a risk to vulnerable groups?
- Intrusiveness of employer’s response—was the restriction proportionate?
Key takeaways for employers
HR teams handling disciplinary issues related to religious manifestations must carefully apply the EAT’s guidance. Any action restricting an employee’s religious expression must be proportionate and justifiable. Employers should be prepared to demonstrate that their response was necessary and minimally intrusive.
Members of the HR Inner Circle can access our flowchart setting out the legal position and a handy checklist for managers here: https://members.hrinnercircle.co.uk/the-vault/templates-and-checklists