Picture credit: Christian Concern

A judicial defence of religious liberty is long overdue

Christians should not be discriminated against because of their religious beliefs

Artillery Row

In theory, the Equality Act 2010 prohibits dismissing people because of their religious beliefs. Religion, belief, or lack of belief are all recognised as “protected characteristics”. Any justification offered by an employer — however benign, however persuasive — is no defence to a claim for direct discrimination. 

And yet, we read regular reports of Christians losing jobs for sharing their “offensive” beliefs on such issues as transgenderism, same-sex marriage, abortion, Islam, etc. In all such cases, the employer’s defence in the Employment Tribunal has been the same: we have nothing against your beliefs, it is all about the way you expressed your beliefs — at the wrong time or a wrong place, or with the wrong choice of words, wrong tone of voice, wrong audience, etc. More often than not, this splitting of hairs has been accepted by Tribunals. 

In a high-profile Christian discrimination case due to be heard by the Court of Appeal later this year, Higgs v Farmor’s School, the second highest court in the land will either tick or cross that approach.  

Kristie Higgs, a school assistant, was dismissed for a Facebook post sharing a petition against compulsory sex education in primary schools and another post sharing an article which argued that sex education indoctrinated children with crazy ideas of gender “neutrality” and “fluidity”. 

After a trial in 2021, Bristol Employment Tribunal (ET) recognised that Mrs Higgs’ beliefs were protected by the Equality Act — but then vindicated her bosses who allegedly dismissed her not because of those beliefs, but only because they thought (rightly or wrongly) that people might think from reading those posts (rightly or wrongly) that she was “homophobic” and “transphobic”. 

On appeal, the Employment Appeal Tribunal (EAT) held that the Bristol ET overlooked the importance of Mrs Higgs’ Convention Rights to freedom of thought, conscience and religion (Article 9) and freedom of expression (Article 10); and that it could only dismiss her claim having established that the interference with those rights was prescribed by law, proportionate and necessary in a democratic society for the protection of the rights of others. The EAT proposed to remit the case back to the same panel at Bristol ET to carry out that analysis. 

Despite having technically “won” in the EAT, Mrs Higgs appealed to the Court of Appeal, arguing that the facts of the case allowed for only one outcome and that remitting the case to the same ET was unnecessary and unfair. Her application argued that the appeal raised the following important points of principle and practice: 

  • The extent to which an employer can lawfully interfere with an employee’s faith-based contributions to debate about government policy.
  • Whether an employer can restrict employees’ freedom of speech because it fears that it will be subject to criticism if it upholds it. 
  • liability of employers for acceding to religiously discriminatory pressure of customers or other third parties.
  • the effect in law of stereotypical assumptions (whether by employers, fellow employees or service users) about the likely behaviour of employees based solely on their religious beliefs.

Exceptionally for a “winner’s appeal”, the Court has now given permission to appeal on all grounds. In giving permission, Lady Justice Elizabeth Laing observed that “this appeal raises at least three important questions about the dismissal of an employee for the expression of her beliefs”: 

  • First, how does the “fine distinction” between dismissing an employee for her beliefs or for expressing them in an inappropriate way fit into the statutory rule that direct discrimination can never be justified? 
  • Second, the guidance given by the EAT to the lower Tribunals “may arguably dilute the stringency of the statutory rule by requiring an employee to show, not only direct discrimination, but that the discrimination is not ‘in accordance with the law’ and not proportionate to a legitimate aim”.  
  • Third, to what extent an employer can lawfully dismiss an employee for expressing religious views “in a forum which is not in the workplace, is not controlled by the employer, and which has a limited number of members”? 

The past decade’s history of Christian liberty cases in Employment Tribunals demonstrates that an authoritative guidance of these issues from near the top of the judicial hierarchy is long overdue. The willingness of the Court of Appeal at last to grapple with these sensitive issues is a welcome development. It remains to be seen what protection the Courts are willing to give to Christian employees to share their views without fearing retribution from the increasingly intolerant employers.

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