Thread by @JasonBraier

🧵Higgs v Farmor's School: At last the decision in this appeal on religion/belief, freedom of expression re the Biblical literalist view of gender & marriage etc. Judgment ends with mega-important basic principles on the proportionality exercise
bitly.ws/IF5L
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2/ H was a pastoral admin/work experience manager at FS. She posted a post on Facebook to petition against govt consultation on relationship & sex education in primary schools would normalise single sex relationships, say gender was a matter of choice & forbid Christian teaching.

3/ A parent raised concern with FS's head re the posting of homophobic/prejudiced views. The parent sent other posts as well where H had re-posted similar views on FB. H was confronted about the posts & said she wasn't homophobic/transphobic. She didn't regret the posts.

4/ H was suspended. On investigation she explained the post was about the govt was trying to do in her son's Christian primary school, & in saying she wasn't against gay/trans people she suggested some also think like her.

5/ H denied the posts could compromise her work with any LGBT children, she'd not treat them any differently and wouldn't bring her views into the school. The matter went to a disciplinary, the investigator finding H's posts showed the holding of 'illegal discriminatory views'.

6/ At a disciplinary, H was dismissed for gross misconduct, the panel finding she'd breached the code of conduct as her FB posts were 'clear evidence of discrimination in the form of harassment'. The panel found it legit to fetter H's rights to freedom of religion/expression.

7/ H appealed unsuccessfully & then brought an ET claim for direct discrim or harassment, re religion or belief, relying on lack of belief in gender fluidity or that someone could change gender, belief in marriage between 1 man & 1 woman, lack of belief in same sex marriage, ...

8/ ... opposition to sex/relationship education at primary school, belief in public witness to Biblical truth where unbiblical ideas are promoted, & belief in the literal truth of the Bible (Genesis 1:27) re God creating man in His own image, male & female.

9/ The ET accepted all bases met the Grainger test & then considered the s.13 & 26 claims. In rejecting H's s.13 claim, the ET noted H's language might reasonably be seen as homo/transphobic & might be perceived to hold those beliefs, though she expressly rejected them.

10/ Re s.26, the ET found suspension/discipline/dismissal unwanted & were connected to her belief but wasn't due to expressing those beliefs in a temperate/rational way but b/c the language might lead people to conclude she held the trans/homophobic views she expressly rejected.

11/ Consequently the ET found the action against H resulted from FS's conclusion that her action in posting the FB posts led others to conclude she held wholly unacceptable views that she herself rejected, & that therefore it wasn't related to her relevant beliefs.

12/ The EAT noted how protection is to be afforded not only to the holding of beliefs but to their manifestation, that the right to discrim/harassment protection is subject to limits consistent with ECHR limits, & that A9 ECHR is integral to interpreting the Framework Directive.

13/ The EAT noted the guidance in Sahin v Turkey on the balance to be struck on relig/belief between competing groups, & then looked at the Eweida requirement that a manifestation in A9 requires an intimate link/sufficiently close & direct nexus to the claimant's religion/belief.

14/ On A10 the EAT noted freedom of expression's foundational importance to democracy & the need for restrictions to be proportionate, & that A10 of course protects speech that shocks, offends or disturbs the Member state or any section of the community.

15/ Whilst there's a need to avoid a chilling effect, the courts also recognise a State's entitlement to include obligations to avoid expression that is gratuitously offensive & doesn't contribute to public debate, as well as restrictions re public safety & crime prevention.

16/ The EAT set out the Bank Mellat questions on proportionality of restrictions before turning to Page re the essential q on a s.13 claim being whether the PC was the reason for the act complained about in the claim, distinguishing manifestation from the manner of doing so.

17/ Where the reason for the decision-maker's action is the objectionably manner in which the belief is manifested, & the restriction is proportionate, the 'reason why' isn't the belief. If that's not so, the obverse is the case, & it's not an excuse that a 3rd party demanded it.

18/ H appealed on 7 grounds. The 1st 2 concerned a failure to consider proportionality of the interference with the manifestation of a religious belief & failure to consider whether the interference was prescribed by law.

19/ FS conceded both grounds, accepting H's actions amounted to a manifestation of belief (& hence the ET's distancing on that was wrong) & that the ET hadn't undertaken the balancing exercise under A9(2) or 10(2).

20/ The EAT agreed. The ET didn't ask the Eweida q or appreciate that the views/interpretation of others weren't relevant to whether H's post was a manifestation of her belief. Also the ET should've carried out a proportionality assessment before deciding on objectionability.

21/ The EAT considered H had a valid objection to the ET's failure to recognise the right for H to express views which may offend, shock or disturb, & it was valid to raise the q whether FS's concern was informed by the complainant's assumptions as to H's views.

22/ The EAT also criticised the ET's lack of consideration whether the restrictions on H's manifestation was prescribed by law - in this case whether the basis for FS's actions was accessible to H in order that she could foresee consequences of her conduct.

23/ On proportionality, the Archbishops' Council of the C of E, intervening, raised concerns about the line between taking objection to manifestation & the manner of manifestation, & when that's justifiable. It proposed guidance on a number of practical elements to take into a/c.

24/ Reluctantly, Eady P agreed it was of benefit to lay down some general principles, which (i) recognised the foundational nature of the rights to manifest belief & expression, whether or not popular, mainstream of liable to offend, (ii) recognised they're qualified rights.

25/ (iii) Noted that objective justification of a restriction is always context-specific, with the nature of the employment relevant to that context; (iv) It's always necessary to ask the Bank Mellat questions; and lastly...

26/ (v) that in answering the Bank Mellat qs in an employment relationship context, have regard to the content, tone & extent of the manifestation, the worker's understanding of the likely audience, intrusion into others' rights, impact on employer's ability to run its business..

27/ ...whether the worker made clear the views expressed are personal or whether they might be seen as representing those of the employer & whether this presents reputational risk, any power imbalance between the worker's position & those whose rights are intruded on,

28/ The nature of the business, especially where there's a potential impact on vulnerable service users or clients, & whether the limitation imposed is the least intrusive measure open to the employer.

29/ Though the underlying case law isn't mentioned in the judgment, it's a list replete with the hallmarks of a whole host of cases, with clear inspiration from cases such as Ngole, Miller, Game Retail v Laws, Smith v Trafford, Gibbins v British Council, to name but a few.

30/ It'll be interesting to see whether ETs use this as a guide or a checklist in future, & how the law develops when an ET inevitably misses out aspects of the list.
Whether a checklist or mere guide, the end of Higgs will now be key to all of this species of cases.
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