international employment law firm alliance L&E Global
United Kingdom

UK: EAT gives important guidance on proportionality in protected belief cases


Mrs Higgs, a School Pastoral Administrator and Work Experience Manager, was dismissed after the school received complaints about Facebook posts she had made relating to relationships education in primary schools. The school considered that someone reading the posts could reasonably consider that she not only believed that gender fluidity should not be taught in schools but also had a negative attitude towards the LGBTQ+ community, and trans people in particular. Mrs Higgs subsequently brought claims for discrimination and harassment due to her protected beliefs.

The EAT stated that in such cases, a tribunal must first engage with the question of whether the employee’s actions were a manifestation of their philosophical beliefs by determining whether there was a sufficiently close or direct link between the belief and their actions. The EAT found that there was such a close link between Mrs Higgs’ protected beliefs and her Facebook posts.

The EAT also noted that where an employer takes action because of the way an employee has expressed their belief, the tribunal should carry out a proportionality assessment to determine whether the employer’s interference in the employee’s right to freedom of expression is objectively justified. The EAT provided guidance on relevant factors to take into account when assessing whether an employer’s interference with the right to freedom of expression is proportionate:

  • the content, tone and extent of the employee’s statement or action
  • the likely audience
  • the nature of the employer’s business and any consequential impact on the employer’s ability to run its business
  • whether the employee has made clear that the views expressed are personal, or whether they might be seen as representing the views of the employer, and might present a reputational risk, and
  • the interference should always be done in the least intrusive way.

The EAT allowed the appeal and sent the claim back to the tribunal for determination.

Key Action Points for Human Resources and In-house Counsel

The EAT’s guidance is helpful for employers on assessing the proportionality of a response to an employee’s manifestation of gender critical views.

A tribunal has now awarded £100,000 compensation in the high-profile gender critical beliefs case, Forstater v CGD Europe Last year, a tribunal had held that Ms Forstater had suffered direct discrimination when her consultancy agreement was not renewed after she expressed gender critical beliefs (including a belief that sex is immutable and should not be conflated with gender identity, and that trans women are men) on Twitter and at work.

Higgs v Farmor’s School v The Archbishops’ Council of the Church of England