Protected beliefs and discrimination – limitations of free speech

There have been several well-publicised cases in recent years which centre on the much-debated topic of ‘gender critical beliefs’ and whether action can be taken as a result of the way in which such views are expressed, including that of Maya Forstater [1], who was recently awarded over £100,000 in compensation after her contract was not renewed following Tweets expressing the belief that biological sex cannot be changed (a view which has attracted much attention through supporters such as J.K. Rowling).

In the recent decision of Higgs v Farmor’s School [2], the Employment Appeal Tribunal (EAT) provided guidance when assessing whether action due to the expression of a controversial belief may be proportionate. As these issues are increasingly likely to arise, we discuss the practical implications of the case and its bearing on how businesses should navigate this complex but important issue.

The facts

Mrs Higgs, who was a pastoral administrator and work experience manager at Farmor’s School, shared a series of Facebook posts about sex and relationships education in schools. One of the posts referred to schools ‘brainwashing’ children and cited the example of ‘teaching that all relationships are equally valid and “normal”, so that same sex marriage is exactly the same as traditional marriage and gender is a matter of choice, not biology, so that it’s up to them what sex they are’. It went on to say that teaching fundamental Christian beliefs would therefore become ‘forbidden’, because they ‘conflict with the new morality’.

A parent of a pupil at the school saw the post and complained to the school, highlighting that Mrs Higgs worked with children who are or may be LGBT+. After a disciplinary investigation, Mr Higgs was dismissed.

Mrs Higgs claimed this amounted to discrimination due to her beliefs.

Protected beliefs

The claim was based on discrimination due to the specific beliefs that Mrs Higgs held, as opposed to discrimination because she was a Christian. The way in which beliefs are framed in such claims is important (and can include a ‘lack of’ belief). Here, they included a lack of belief that someone can change their biological sex and a lack of belief in same sex marriage.

We consider the test as to whether a belief is protected in further detail in our article Lessons from Lineker.

If a belief is protected, it is then necessary to consider why the action was taken.

Freedom of speech and expression

While Mrs Higgs’ beliefs were held to be protected, the claim failed in the first instance. The tribunal found that the school had taken action due to the language used in the posts and the concern that a reader might conclude Mrs Higgs held homophobic and transphobic views, rather than the treatment being related to her protected beliefs per se.

Mrs Higgs appealed. The EAT held that the tribunal had failed to properly address the relationship between the posts and her beliefs.

Under the European Convention on Human Rights, individuals are free to ‘manifest’ their religion or belief – that right can only be limited where ‘prescribed by law’ and ‘necessary in a democratic society, in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others’ [3]. In its judgment, the EAT emphasised the importance of tolerance between groups with different belief systems, making clear that ‘democracy does not simply mean that the views of a majority must always prevail’ [4]. This follows the now well-established principle that beliefs which some may find offensive or shocking are still capable of protection and can be expressed in a public forum.

However, this does not mean that action can never be taken. Principles have developed through case law such that, where the expression of a belief has sufficient connection with the belief itself, it will not be possible to rely on a distinction between the two, unless the action taken is a proportionate means of achieving a legitimate aim.

The EAT therefore remitted the case back to the tribunal for a re-hearing, to carry out a proportionality assessment (and, in doing so, set out guidance for undertaking that assessment). We therefore await the hearing to see how the guidance will be applied and whether Mrs Higgs will succeed in her claim.

Guidance – what is a proportionate interference with freedom to express a protected belief?

While each case will turn on its particular facts, the following should be considered when seeking to justify limiting the expression of a belief [5] (and thereby avoid a finding of discrimination):

1. What objective is the business seeking to achieve? An example might be the wish to ensure that LGBT+ groups feel safe and included at work. In considering that objective:
   1. Is it sufficiently important to justify the limitation of the right to express the belief?
   2. Are the limits placed on the freedom of expression reasonably connected to that objective?
   3. Is there a less intrusive method which could be used to achieve the same aim
   4. Does the severity of the limitation on the right to freedom of expression outweigh the importance of the objective?

2. In considering the above, a proportionality assessment should be undertaken. In carrying out that assessment, the following may be relevant in relation to the manifestation of the belief (let’s assume, here, it’s a post on social media):
   1. The content of the posts.
   2. The tone of the posts.
   3. The likely audience.
   4. The extent and nature of the intrusion on the rights of others and the consequential impact on the business.
   5. Whether the individual has made clear the views are their own.
   6. If they might be construed as the business’ views, whether that presents a potential reputational risk.
   7. Whether there is a potential power imbalance given the role/status of the individual making the posts, when compared with that of those whose rights are intruded upon.
   8. The nature of the business, in particular where there is a potential impact on service users or clients.
   9. Whether the limitation imposed is the least intrusive measure open to the business.

Case comment – protected beliefs and discrimination: what should businesses do?

The debate surrounding gender critical beliefs and LGBT+ rights will continue. Protected beliefs and discrimination is an important and complex topic, where views are often polarised. Because of this, businesses may be keen to distance themselves from certain views in fear of negative repercussions and reputational damage. It can also be difficult to disregard personal opinions when considering what action to take (or not take).

The legal position is not straightforward, but it’s clear that a proportionate response is key. In light of this, businesses should avoid taking automatic or impulsive reactions to social media posts or complaints about such posts – a considered and balanced approach is necessary.

It’s important to stress, though, that this does not mean that businesses cannot take a clear stance on LGBT+ inclusion. In fact, including clear principles on diversity, equity and inclusion in internal policies, documents and networks may assist in supporting a decision to act against inappropriate expressions of views that contradict organisational values.

When it comes to managing the use of social media, businesses should not seek to prohibit discussions entirely but may, for example, ask individuals to make clear that views expressed are their own, request that people are mindful of their language, respectful and considerate and, importantly, be clear on whether social media may be monitored and when action may be taken.

Please contact Charlotte or Lauren for assistance in respect of protected beliefs, discrimination, or related issues.

[1] M Forstater v CDG Europe and others UKEAT/0105/20

[2] Higgs v Farmor’s School [2023] EAT 45

[3] Article 9(2) of the European Convention on Human Rights

[4] Higgs v Farmor’s School [2023] EAT 45, paragraph 108

[5] Guidance taken from paragraph 94 Higgs v Farmor’s School [2023] EAT 45 (not set out verbatim)