Miss G Soydag v St Anne's Catholic High School for Girls: 3309325/2023
EMPLOYMENT TRIBUNALS
Case No 3309325/2023
Between
Miss G SoydagClaimantSt Anne's Catholic High School for GirlsRespondent
Before
Employment Judge S MatthewsDate 5 March 2025
JUDGMENT
[1]The complaint of breach of contract in relation to notice pay is not well-founded and is dismissed.[2]The complaint of direct religion and belief discrimination is not well-founded and is dismissed.[3]The complaint of indirect religion and belief discrimination is not well-founded and is dismissed.[4]The complaint of harassment related to religion and belief is not well-founded and is dismissed.
REASONS
[1]The claimant brought claims for wrongful dismissal (notice pay), direct discrimination and indirect discrimination on the grounds of religion and belief and harassment related to religion and belief. The claim arose out of the claimant’s complementarianism Christian beliefs. She claimed that she had been treated detrimentally, dismissed and harassed because of the beliefs or because she manifested the beliefs.[2]The tribunal heard evidence from the claimant on her own behalf and on behalf of the respondent from: Emma Loveland, the Headteacher; Jo Sanders, the Associate Headteacher; and Ginny Everson, counsellor contracted to the respondent. Paragraphs in their witness statements are referred to in brackets below by their initials and paragraph number (XY/1).[3]We had a bundle of 552 pages. Numbers in brackets below are references to pages in the bundle. In addition, we watched the King of my Life (“KOML”) video, the transcript of which is set out at paragraph 24 below. There was further disclosure during the hearing of a Code of Conduct because the wrongly dated Code of Conduct had been put in the bundle. That was added to the bundle as pages 553 to 585.[4]On the final day of the hearing the claimant made an application for further disclosure of captions related to a selection of the claimant’s social media posts. The captions were those which were current at the date of the hearing, not at the date of the alleged events. The respondent made an application to include a caption related to a different social media post. The applications were allowed, and those documents were added to the bundle (586-592). Reasons for allowing the disclosure were given orally at the hearing. The claimant gave supplementary evidence about the captions. Procedural background[5]The issues in this case were first set out at a case management hearing on 6 January 2024. On 14 May 2024 Employment Judge French made an Order permitting the joint instruction of an expert.[6]On 15 November 2024 Employment Judge Margo made an order that the expert’s report be put in the bundle; the tribunal panel at the final hearing to decide on relevance. The report by Dr Ian Paul dated 25 November 2024 (504- 547) helped to clarify and explain the claimant’s beliefs and, following receipt of that report, the respondent accepted that the claimant’s beliefs were protected beliefs under s.10 of the Equality Act 2010. The tribunal, having read the report, found no additional matters within it that it relied on in addressing the issues it needed to address.
The issues
[7]At the outset of the hearing Ms. Cunningham confirmed that the respondent accepted that the claimant’s beliefs (paragraph 9, issue 3 below) were protected beliefs under s.10 of the Equality Act 2010.[8]The issues set out following the case management conference do not identify whether the claimant is relying on religious or philosophical beliefs. Square brackets pose the alternative ‘Religious, or philosophical’ in respect of each of the beliefs. Mr. Phillips was asked whether the claimant was relying on the beliefs as religious or philosophical by the Employment Judge during the hearing. He declined to distinguish the type of belief. The evidence and submissions presented indicate that the claimant was relying on the beliefs as religious beliefs, but the tribunal has considered both alternatives and, as can be seen from our conclusions, the type of belief would not affect our decision.[9]The issues to be determined by the tribunal were: “1 Employment status1.1 Was the Claimant an employee of the Respondent within the meaning of section 230 of the Employment Rights Act 1996 or section 83 of the Equality Act 2010?1.2 Was the Claimant a worker of the Respondent within the meaning of section 230 of the Employment Rights Act 1996? 2 Wrongful dismissal / Notice pay2.1 If the Claimant was employed by the Respondent, what was the Claimant’s notice period?2.2 Was there an implied term of that contract that it could only be terminated upon a reasonable notice being given to the other party; and/or2.3 An implied term that the length of reasonable notice was one school term?2.4 Was the Claimant paid for that notice period?2.5 If not, did the Claimant do something so serious that the Respondent was entitled to dismiss without notice? 3. Philosophical and religious beliefs3.1 Subject to the provision of Additional Information from the Claimant, the beliefs that she relies upon are set out below.3.2 Do the following amount to religious and/or philosophical beliefs:3.2.1 Alleged [Religious, or philosophical?] Belief 1 - In the beauty and holiness of the institution of marriage and of the traditional nuclear family.3.2.2 Alleged [Religious, or philosophical?] Belief 2 - In the importance of preserving one’s purity for the future marriage, and rejection of such relationships as fornication or unmarried cohabitation.3.2.3 Alleged [Religious, or philosophical?] Belief 3 - In the beauty and holiness of mutual love and submission within marriage, which necessarily includes loving submission of a wife to her husband.3.2.4 Alleged [Religious, or philosophical?] Belief 4 - In the existence and goodness of a hierarchy within a family based on the natural order of things and the words of the Holy Scripture.3.2.5 Alleged [Religious, or philosophical?] Belief 5 - In the husband’s natural and Biblical role as the head of the family, and the honour and obedience due to a husband from a wife on that basis.3.2.6 Alleged [Religious, or philosophical?] Belief 6 - That the possibility of corruption or abuse in individual cases does not detract from the inherent beauty and holiness of that love, submission and hierarchy which properly exist in a marriage. 3.4 Did the Respondent perceive the Claimant to hold any of the qualifying beliefs alleged? 4. Direct discrimination because of religion or belief (Equality Act 2010 section 13)4.1 The Claimant relies upon the beliefs expressed above.4.2 Did the Respondent do the following things:4.2.1 Censorship of her social media activity by:4.2.1.1 Telling the Claimant on 9 February 2023 that it had concerns about the Claimant’s video entitled “I chose this man to be the king of my life” which appeared on her @ladygozen page, and that if a man made the same statements it would be misogynistic.4.2.1.2 Telling the Claimant on 9 February 2023 that it was the Respondent’s “policy” that all private social media accounts of its employees had to be kept private and not accessible to general public.4.2.1.3 On 27 February 2023, telling the Claimant that it wanted to ensure that any Google search would not cause the Claimant’s name and @wifeinthewaiting to appear in the same search result, and that the Claimant had 24 hours to achieve that. That followed a complaint from a parent about the Claimant’s @wifeinthewaiting page who had concerns and strongly disagreed with the views expressed on that page.4.2.1.4 On 27 February 2023, the Respondent accused the Claimant of failing to take down the ‘king of my life’ video despite being asked to do so by the Respondent. The Claimant explained that she had been only asked to take it down from the @ladygozen page and had done so. The Headteacher told the Claimant that she was concerned that the video remained accessible on other social media platforms and pages.4.2.1.5 On 28 February 2023, the Headteacher of the Respondent school criticised the Claimant’s actual or perceived beliefs expressed at @wifeinthewaiting.4.2.2 The dismissal or termination of the Claimant’s engagement on 28 February 2023 with immediate effect after telling the Claimant that it was “due to much of your extensive online profile being incompatible with the schools mission statement and ethos, and the fact that despite being asked to remove such incompatible information your profile appears to a large extent to remain unchanged”.4.3 Did the Respondent treat the Claimant less favourably than a hypothetical comparator who had posted the same material as the Claimant, but who did not have the alleged, protected beliefs?4.4 If the reason was a manifestation of the Claimant’s beliefs, whether the Respondent’s interference was prescribed by law and necessary in a democratic society such as to be protected under Article 9(2) ECHR and 10(2) ECHR? 5. Indirect discrimination (Equality Act 2010 section 19)5.1 A “PCP” is a provision, criterion or practice. Did the Respondent have the following PCPs:5.1.1 The requirement that all employees ensure that they are not publicly associated with social media posts deemed controversial in modern society and incompatible with the school’s ethos; and/or5.1.2 When considering complaints about social media activity of its employees:5.1.2.1 Uncritically accept criticisms made by a complainant and/or5.1.2.2 Give substantial weight to an assertion that a complainant finds the employee’s manifestation of belief offensive; and/ or5.1.2.3 Give little to no weight to the employee’s right to freedom of expression.5.1.2.4 Fail to defend pluralism and diversity of opinions and/or Beliefs.5.2 If so, did the PCP put the Claimant at a particular disadvantage in that she was dismissed for her social media posts?5.3 If so, would the PCP put individuals with the same religious, or philosophical beliefs to the extent they qualify for protection at the same disadvantage?5.4 If so, was the application of any PCP a proportionate means of achieving a legitimate aims.? The Respondent says its aims were:5.4.1 to protect the pupils at the Respondent, who were all 11-18 year old girls and potentially very vulnerable to the views being promoted by the Claimant;5.4.2 To ensure employees are aligned with the Respondent’s teaching of equity, equality and tolerance.5.4.3 To ensure its students are guided in preparation for adult life in Britain in which they have the right to be treated as equal with men, and in which they have the right to forge their own path as independent and professional women, should that be the path they choose.5.5 The Tribunal will decide in particular:5.5.1 Was the PCP an appropriate and reasonably necessary way to achieve those aims?5.5.2 Could something less discriminatory have been done instead;5.5.3 How should the needs of the claimant and the Respondent be balanced? 6. Harassment related to religion or philosophical belief (Equality Act 2010 section 26)6.1 Did the Respondent do the following things:6.1.1 Telling the Claimant on 9 February 2023 that it had concerns about the Claimant’s video entitled “I chose this man to be the king of my life” which appeared on her @ladygozen page, and that if a man made the same statements it would be misogynistic.6.1.2 Telling the Claimant on 9 February 2023 that it was the Respondent’s “policy” that all private social media accounts of its employees had to be kept private and not accessible to general public.6.1.3 On 27 February 2023, telling the Claimant that it wanted to ensure that any Google search would not cause the Claimant’s name and @wifeinthewaiting to appear in the same search result, and that the Claimant had 24 hours to achieve that. The followed a complaint from a parent about the Claimant’s @wifeinthewaiting page who had concerns and strongly disagreed with the views expressed on that page, the Respondent informed the Claimant that6.1.4 On 27 February 2023, the Respondent accused the Claimant of failing to take down the ‘king of my life’ video despite being asked to do so by the Respondent. The Claimant explained that she had been only asked to take it down from the @ladygozen page and had done so. The Headteacher told the Claimant that she was concerned that the video remained accessible on other social media platforms and pages.6.1.5 On 28 February 2023, the Headteacher of the Respondent school criticised the Claimant’s actual or perceived beliefs expressed at @wifeinthewaiting.6.1.6 The dismissal or termination of the Claimant’s engagement on 28 February 2023 with immediate effect after telling the Claimant that it was “due to much of your extensive online profile being incompatible with the schools mission statement and ethos, and the fact that despite being asked to remove such incompatible information your profile appears to a large extent to remain unchanged”.6.2 If so, was that unwanted conduct?6.3 Did it relate to any of the alleged qualifying beliefs?6.4 Did the conduct have the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant?6.5 If not, did it have that effect? The Tribunal will take into account the Claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect. 7. Time limits / Jurisdiction7.1 There was a potential issue regarding the meeting with Jo Sanders which occurred before 26 February 2023 and may not have been brought in time.7.2 The respondent accepted, and the tribunal agreed, that the act was brought in time because there was conduct extending over a period.”
Findings of fact
[10]We have not referred to everything that the parties told us about, only evidence that is relevant to our findings. The role of the employment tribunal is to determine the case before it. To the extent that there is a conflict of belief between the parties the employment tribunal is neutral and does not take any side in the debate. We make findings on the balance of probabilities having heard the evidence. Respondent’s Mission Statement, Policies and Codes[11]The claimant joined the respondent as a Pastoral Manager on 1 September 2022. She was Pastoral Manager for Year 10; a year group of 14 to 15-year-old girls. The respondent is a Catholic, single sex, voluntary aided, non-selective school for girls aged 11 to 18.[12]The respondent’s mission statement (555) states: “St. Anne's Catholic High School for Girls will offer a positive presence in Enfield with a comprehensive curriculum, equipping students with the ability to meet the challenges of the 21st Century confidently, and with high spiritual and moral standards. We recognise that students, parents, staff and governors make up the school's community which will continually self-evaluate to improve itself effectively and efficiently in all aspects of its growth. We are a fully inclusive, Catholic girl’s secondary school meeting high academic standards, promoting spirituality, pastoral care and the Catholic community. We recognise in all our relationships the dignity and value of each person showing one another mutual acceptance and respect.”[13]The Code of Conduct (556) states (tribunal’s emphasis): “The Code is binding on all school employees. It is also expected that other workers deployed within the school who are employed by external Agencies or the London Borough of Enfield will adhere to its principles....Breaches of the Code and the standards expressed within it may result in disciplinary action against employees, including dismissal for serious offences”[14]The Code of Conduct includes guidance on using social networking sites. In her statement the claimant said that she was not aware of the social media guidance and had not read it (GS/49). In oral evidence the claimant conceded that she had read the Code containing the guidance because she had signed a statement confirming she had done so (150).[15]The Code sets out requirements including its expectation that employees and workers “positively promote the school’s vision, ethos and values” that they “use electronic media communication appropriately, responsibly, and legally at all times whether within or outside the workplace/working hours” and they “avoid actions that may discredit the school or bring it into disrepute” (557-558).[16]A section entitled “Internet Social Networking Sites” (574-575) states: “When using a social networking site, either for work-related purposes or outside of working time for personal use, you must: make sure that you understand your online privacy settings and use them responsibly and appropriately … not publish any material or comment that could undermine public confidence in you as an employee/worker in a position of trust. The above list is not exhaustive.” .[17]An Acceptable Use Policy (409) ostensibly covers the use of digital technology in school, but it also says: “I will ensure that any private social networking sites/ blogs etc that I create or actively contribute to are not confused with my professional role. ... I will not engage in any online activity that may compromise my professional Responsibilities.”[18]The school follows statutory guidance on relationships and sex education (JS/16) (410). The school is required to “consider the make-up of their own student body, including the gender and age range of their pupils”. They should “consider what they can do to foster healthy and respectful peer-to-peer communication and behaviour between boys and girls, and provide an environment, which challenges perceived limits on pupils based on their gender or any other characteristic”. It also requires that they should “be alive to issues such as everyday sexism, misogyny, homophobia and gender stereotypes and take positive action to build a culture where these are not tolerated”.[19]The tribunal found that the mission statement, policies and code were accessible to the claimant and she read the code about responsible use of social media. This made it clear that the claimant was expected to promote the school’s vision, ethos and values and not publish any material or comment that could undermine public confidence in her as an employee/ worker in a position of trust. It was clear that breach of the code may result in disciplinary action, including dismissal. The Claimant’s Social Media accounts[20]The claimant had two Instagram accounts when she joined the school; one which she describes as a general Christian ministry @ladygozen, and the other called @Wife In The Waiting. She explains in her statement that she set up the latter after prayer and consideration as a ministry, and a service which would encourage, empower and equip women to be wives. It is dedicated to celebrating the institution of marriage and the traditional nuclear family in accordance with God’s design (GS/17).[21]The primary account was the Lady Gozen Instagram account. She had about 30,000 followers. When the claimant posted on the Lady Gozen Instagram account it auto posted to her Lady Gozen Facebook account. Wife in the Waiting and Lady Gozen each had a link that visitors to the site could click on to take them to the other account. The claimant also had Lady Gozen and Gozen Soydag Facebook accounts, a YouTube Lady Gozen account, a TikTok account and a Gozen Soydag LinkedIn account. The accounts were all public and open. If you searched the claimant’s name on Google these accounts could easily be found. The accounts did not refer to the school but could be found by anyone at the school or connected with the school curious enough to google her name.[22]The claimant did not discuss or disclose her social media accounts with the respondent when she joined the school despite references to social media in the code she had read and the policies referred to above. In oral evidence she said that she expected the respondent to do a search of her name before she joined. She had expected them to mention that she was “famous”, and she was surprised they did not know about her as she had a large following.[23]The claimant maintained she would not expect the students she was responsible for to look at the accounts as in her view a 14-year-old should not be concerned with marriage. She said in oral evidence “It’s for women who desire marriage and in today’s society that is mid-twenties.” But she accepted that there was nothing to stop the students from finding the accounts and the reality is that 14-year-old girls are quite likely to google the name of a teacher, and this is what occurred here.[24]One post which the students became aware of and which alerted the respondent to the social media accounts was a video she posted. We will refer to the post as the King of My Life video (“KOML”). KOML was posted by the claimant on her Instagram account @LadyGozen and therefore automatically posted onto the @Wife in the Waiting and her Lady Gozen Facebook account. There is a woman wearing a headscarf speaking and the transcript is as follows: “My husband is my boss. My husband is number one. If my husband tells me, “hey, sit down”, I’ll sit down. If he tells me “you can’t go out with your friends today”, I’m not going to go out with my friends. If he says “hey go wash this dish for me”, I’m going to go and wash the dish for him. I chose this man to be the king of my life and yes, I agree with everything he says and I do everything he says and I do that because I chose this man, I put him in this position in my life and this is how I honour and take care of and love the man in my life. So, I tell women out there, “you want a man in your life, you want to be happy? Figure out what you would do when you are happy”. Because I am happy, my husband does so many great things for me, and I would do that for him. I obey him. I respect him and I let him be the man that he is. I chose a man that I wanted to follow. I chose someone to lead me and that’s why I will do anything for him. If he tells me to jump, I’ll jump. If he tells me to sit down, I’ll sit down. If he tells me to go up on the roof or go up on stage, I will do either or. Anyway, that’s a message for everyone out there. Love and cherish the king in your life.[25]When viewed objectively the tribunal find the ‘message’, that women should be submissive in marriage, is expressed in a particularly harsh way. It states women should be prepared when asked by their husband to do the dishes and to jump. It does not refer to mutual submission. The woman is saying I will do anything for my husband including jump and go up on the roof. It appears to condone an abusive and coercive relationship.[26]The claimant added a caption underneath which was visible if you clicked on the post. The caption said (tribunal’s emphasis): “Many will hear this and see the head covering and think that this woman is a slave or maid to her husband...but what I see is a powerful woman who chooses to honour a man that loves her and a man who she is willing to follow the leading of wherever and whatever he asks her.... You get to choose what you see...what do you see? What are you willing to do or be for your King who loves and cherishes you? Credit unknown - please DM to add or to take down.”[27]In oral evidence the claimant said the caption was an invitation to discuss the video and that she posted the video for discussion, not because she necessarily agreed with it. It was not her normal practice to put up posts for discussion, but she was doing so with this one. The tribunal decided that on a reasonable and objective reading of the caption wording, even if not completely endorsing the video, it was in effect saying, “I am in favour of this, what do you think?” Employment Status[28]We heard evidence from the claimant and Emma Loveland about the formation of the contract between the claimant and the respondent. The claimant wanted to be self-employed for tax purposes and to pursue other roles such as tutoring (GS/14). The respondent needed cover for an employee who was on sick leave.[29]Emma Loveland was willing to take the claimant on as an employee but the claimant asked for an alternative arrangement (GS/35) (tribunal’s emphasis): “During the meeting Mrs Loveland agreed that she was willing to employ me as an employee, as this was the arrangement with the Learning Support Co-ordinator’s (other heads of year). However, I asked whether we could look at things a bit differently, as I wanted to build my own business within Educational Support, to give me the flexibility I needed to conduct other roles I was still doing such as tutoring. We concluded that I was still expected to undergo the Job Description specifications in addition to my agreed support group work and mentoring as needed. She also asked me what my rate of pay was, and I asked whether I could get back to her on this matter.[30]Emma Loveland agreed that the claimant could work for the respondent in what she describes as a ‘contract role’ (EL/12). It was a good solution because she needed someone to take on the role on a flexible temporary basis (EL/13). The role was already filled by the staff member who was off sick and Emma Loveland wanted to keep the role open so that it was waiting for the staff member when they returned.[31]Emma Loveland asked the claimant to provide her rate of pay and the claimant told her that her daily rate was £250. That was a higher rate than Emma Loveland would have paid an employee, but she was prepared to pay that rate to reflect flexibility. The claimant wanted to work for five days a week; the respondent could only afford her for four days at that daily rate. She was only paid for the days she worked. She did not have to attend the inset day on the first day of term, it was her choice to do so. The claimant’s invoices were headed with the name of a limited company, G S Consultant Services Limited (179).[32]The claimant was integrated into the organisation in that she was held out as an employee or worker; only a few people knew that she invoiced the respondent for her services. The claimant could not substitute someone else to do the work for her. The claimant used the respondent’s IT system and equipment. However there was no discussion of sick pay, holiday or pension. There was no expectation that she would have an appraisal or that her performance would be monitored, and there was no probation period as it was a temporary post. Her line manager was nominally the Head of Key Stage 4 but her work was not controlled by him and she would refer any day to day issues to Emma Loveland (EL/17).[33]Separately, the claimant was undertaking a counselling course outside school. She needed to undertake a counselling placement as part of her course and Emma Loveland agreed to her undertaking that at school (limited to counselling sixth formers only so it did not conflict with her pastoral role for Year 10). She was supervised by Ginny Everson. She was not paid. The aim was to assist her with her course and it did not form part of the contract for her pastoral role. Notice Pay[34]We have considered the terms of the contract. There was no written term relating to notice. The claimant’s case is that one term’s notice was implied.[35]There was an exchange of emails about the terms of the contract (126- 127). “GS: ‘I also noticed that it was 'term time only', please could this include the 2 extra weeks that were for extra-curricular activities?’ EL: I am happy for the additional weeks to be put in there so its 39 plus two weeks. Sorry my mistake GS: I just wanted to clarify that we are in agreement. I agree to these terms that you have clarified. Will we be signing a working contract? EL: ‘We can do re a contract – if you have one great – if not I will ask our HR to do one.”[36]The claimant did not reply to the email from Emma Loveland about whether she had a contract or whether she wanted HR to prepare one. She could have referred to notice in the email exchange if she thought it was relevant. As it was, the contract was silent on notice. There was nothing in writing or verbally to imply that notice needed to be given by either side. The claimant was being paid by the day. The intention of the parties when they made the agreement was that there should be maximum flexibility for the postholder to return to her role. That is not consistent with a term’s notice as the postholder could not be expected to wait a term before coming back. The claimant was supplying services while the permanent postholder was away. We find that there was no notice period implied. Beliefs[37]At the time of termination of the claimant’s contract the respondent was not aware of the detail of the claimant’s views. They have since been set out during the course of the proceedings and in the report by Dr Ian Paul (504-547). Dr Paul describes the claimant’s beliefs as complementarianism which holds that men and women are created equally in value but are designed for different roles, particularly in the areas of church leadership and family structure. Manifestation of beliefs[38]With the exception of the KOML post it is not disputed that the claimant was manifesting her beliefs on the various posts on her social media accounts (paragraph 7 of the respondent’s written submissions). The claimant’s own evidence regarding whether the KOML post was manifesting her belief was unclear.[39]The claimant acknowledges that the woman speaking in the video was a Muslim woman and does not reflect her faith (GS/55). “By posting this video I was certainly not asking that my followers should follow her example, as although there are similarities between Christian and Islamic marriage, there are several key differences…”[40]Dr. Paul identified that the KOML post was a Muslim woman in a polygamous relationship (540). The claimant did not know this at the time. The claimant now says that she would not have posted it if she had known. When it was put to her in cross examination that the language in the video appears indistinguishable from the language someone might use in the context of coercive control, the claimant said “At the time of posting I did not see it as promoting coercive control but now I know she is in a polygamous relationship I would not have posted it.”[41]The tribunal decided that it was reasonable to infer that the post manifested the claimant’s belief in the hierarchy within marriage which arises out of her religious views. We concluded that she posted the video because at the time she thought it manifested her belief of a hierarchy within marriage which arose out of her complementarianism beliefs. As she says in her witness statement (GS/10/12): “…I believe in line with scripture that a wife is a helper to achieve the vision of a family (Genesis 2:18), and that this will look different in every individual family. ..... . . In understanding God’s design for marriage, I believe that the bible clearly teaches that the ‘…head of every man is Christ, the head of a wife is her husband, and the head of Christ is God (1 Corinthians 11:3). In accordance with God’s design Colossians 3:18- 19 holds that ‘wives are to submit to their husbands, as to the Lord and husbands are instructed to love their wives’. This is also reiterated in Ephesians 5:22 – 33. I believe that submission of a wife to her husband is the deferring to the ultimate leadership of the husband for the health and harmonious working of the marriage relationship. Submission is a choice, a choice to submit to the mission of another, in this case a husband, that one makes based on the conviction that husbands have a God-given leadership role in the family. Nevertheless, this does not negate the fact that women can be leaders also, just not over their husbands.” Events leading to the termination of the contact[42]A series of meetings led to the termination of the claimant’s contract. In summary: 9 February 2023; meeting with Jo Sanders, Associate Headteacher, a discussion about making her accounts private and taking the KOML post down. 23 February 2023; a brief conversation with Jo Sanders again, asking if she had taken the post down, following up on the previous meeting. 27 February 2023; meeting with Emma Loveland, Headteacher. 28 February 2023; a further meeting with Emma Loveland, claimant’s contract terminated. Meeting on 9 February 2023[43]The meeting on 9 February 2023 came about because Jo Sanders had become aware of the KOML post. A student had told a teaching assistant, Lauren, about the claimant's posts on 7 February 2023 (JS/13). “Apparently, the student was from a "non-traditional" background and felt that the Claimant's posts were implicitly criticising this. Lauren then showed me some of the Claimant's posts, and she must have showed me what I now know as the "King of My Life" post as I recall it was about women being submissive to their husbands. I asked Lauren to forward me the posts and said I would look into it.”[44]Jo Sanders was concerned when she saw the KOML post because it appeared to advocate that women should submit to their husband entirely (JS/14/15) (tribunal’s emphasis). “I reviewed the posts she had sent and also Googled "Wife In The Waiting" and looked at the Instagram site this took me to. I became concerned about what I was reading as I felt that the "King of My Life" video, and some of the Claimant's other posts, were advocating messaging that was contrary to our aims and ethos. In particular, the "King of My Life" video appeared to be advocating that women should submit to their husbands entirely. There was nothing about husbands also needing to be submissive to their wives. Other posts appeared to support this, for instance, "Godly men were created to be the Head" (p.187) and God "presenting" a wife to a husband (p.185). I felt that this was in direct contrast to what we teach our girls, that they are equal to men, and that they are in control of their future and should be ambitious for it and work towards what they desire. I felt there was a risk that promoting female submission to men, purely because of gender, regardless of whether it was in marriage only, risked undermining the teaching we try to instil. There was also other messaging which troubled me within the context of our school environment and, in particular, the Claimant's posts very clearly celebrated only the nuclear family, marriage between one man and one woman, and there was nothing which showed any acknowledgement of same-sex relationships, or families who choose not to get married. As mentioned, we have a diverse mix of pupils and I felt that the Claimant's messaging had the potential to make certain students feel devalued and was contrary to our equality policy; indeed, this was what had initially caused the student who had spoken to Lauren Dee to become upset. I was conscious that it was part of the Claimant's role to help the students understand healthy relationships (see p119 for the job description of the Learning and Support Coordinator, which her role was based upon) and I felt her social media activity compromised her ability to do this. To be clear, I had no indication that the Claimant was advocating her own views within her pastoral role, but it seemed to me that it was obvious from her posts what her personal views were and I felt it would be confusing for our year 10 students to have their pastoral support advocating for healthy relationships inside of school in a way that complied with our policy, and then promoting different values publicly on social media outside of School.”[45]Around the same time there were complaints by two parents, and it quickly became apparent that the post was spreading around the school (JS/18) “This is how quickly information spreads around schools; once one student becomes aware of something, they talk about it and then they all start talking about it and soon it has spread around the whole school, and then some of the students will tell their parents so the parents become aware and may talk to other parents. I knew all the students were becoming aware as I could hear them talking about it in the corridors.”[46]Emma Loveland and Jo Sanders discussed the situation, and it was agreed that they would ask the claimant to make her accounts private (JS/18) (EL/19). Emma Loveland (EL/20): “This isn’t the first time we had encountered an issue with the content of the staff social media activity and this is the action we have taken previously and, on those other occasions, the staff member has amended their settings and that was the end of the matter.”[47]The claimant describes the meeting from her perspective in her witness statement (GS/49). Jo Sanders referred to the KOML post. The claimant maintains Jo Sanders commented that if a man were to say what the woman had said, it would be misogynistic and that it was provocative like Andrew Tate. Of Andrew Tate she said, “I did not know who she was referring to.”[48]Jo Sanders agrees she said to the clamant that if a man made the same statements as those on the KOML video it would be misogynistic. She denies that she mentioned Andrew Tate. The claimant might have found information about Andrew Tate when she looked it up later because her evidence to the tribunal was that she did not know what misogynist meant and she had to look it up. In any event, whether or not Jo Sanders referred to Andrew Tate is not significant. Jo Sanders was putting forward a viewpoint to explain what could be considered objectionable about the post. That did not amount to Jo Sanders censoring the claimant’s social media; she was just expressing a reasonable opinion.[49]At the meeting Jo Sanders explained the claimant’s views were her own but because the students were talking about them and some students were upset by the posts, and she specifically mentioned the KOML post, she wanted the claimant’s accounts to be made private. The claimant refused to make her accounts private. In oral evidence Jo Sanders said that: “If the claimant had made the accounts private that would have been the end of it, but the claimant said she was not prepared to make them private because she had a lot of followers but asked what she should do and was told to take [the KOML post] down.”[50]The claimant asked Jo Sanders. “What are you asking me to do?” Jo Sanders said “Take that post down.” The claimant said: “I agreed to take the KOML post down not because I understood their concern but as a goodwill gesture. The meeting was informal, but I was extremely taken aback and surprised by it” (GS/51/52). She did not suggest that she felt intimidated by the tone of the meeting or that she felt her accounts were being censored. She said she was taking it down as a goodwill gesture, not because she felt under pressure.[51]In summary, we find that Jo Sanders called the meeting when she and Emma Loveland were alerted to the claimant’s social media accounts because the students were talking about the KOML video and other posts. Their concern was the KOML post. They thought the claimant would be quite agreeable to making the accounts private once she knew the students had been looking at them.[52]Jo Sanders expressed some views about other posts as well as the KOML ones in her witness statement (paragraph 44 above). In cross examination Mr. Phillips took Jo Sanders to pages of posts on the accounts and asked her to refer to posts she disagreed with. In further disclosure (paragraph 4 above) he sought to establish that those posts reflected the claimant’s religious beliefs. However this line of cross examination did not alter the tribunal’s view that Jo Sanders and Emma Loveland acted as they did because of the KOML post and not the other posts. We do not accept Mr. Phillips’ submission that Jo Sanders had a visceral hatred of the claimant’s beliefs (paragraph 51.4 of his written submissions). The evidence of Jo Sanders when cross examined was that there was no reason that her views could not be expressed in church. The focus at the meeting was on the KOML post and Jo Sanders' purpose was to ask the claimant to make the accounts private so that it could not be seen or take the KOML post down.[53]Mr. Phillips suggested Jo Sanders’ views on the other posts were relevant to the claim for harassment but we find Jo Sanders’ conduct related to the KOML post. It is clear the purpose of the meeting and the content of the meeting was not to criticize the claimant for her views but to ask her to make her accounts private or, failing that, to take down the KOML post. Jo Sanders was carrying out a course of action agreed with Emma Loveland. This is corroborated by the claimant’s description of the meeting (paragraph 50 above).[54]Following that meeting on 23 February 2023, in a brief conversation, Jo Sanders informed the claimant that Emma Loveland was going to check over the weekend that the KOML post had been taken down. Meeting on 27 February 2023[55]On 27 February 2023, there was a meeting between Emma Loveland and the claimant. Emma Loveland called the meeting after hearing about the meeting that the claimant had with Jo Sanders and noting that the KOML post was still visible on @ Wife in the Waiting. @Wife in the Waiting was linked to the Lady Gozen account. She was conscious that many of the pupils seemed to know the claimant had posted this video (EL/22).[56]Emma Loveland’s recollection of the meeting is set out in her witness statement (EL/22/23). The claimant confirmed that she had only removed the KOML post from one of her accounts, the @Lady Gozen. The claimant suggested that Jo Sanders had only asked her to take it down from one of her accounts and Emma Loveland reasonably expressed some disbelief at this statement saying, “Come on, you know what Jo was asking you to do.” The claimant said she would take the post down from @Wife In the Waiting but because of the algorithm it could take up to six months before it disappeared. Emma Loveland stressed to her that they did not have six months and the situation was likely to implode. The claimant said she would go away and see what she could do by the next day.[57]The claimant describes the meeting in similar terms in many respects in her witness statement (GS/61). She said, “the meeting concluded with Mrs Loveland asking me to investigate how to disconnect @wife in the waiting with@ladygozen”. Slightly oddly the claimant says, “I expressed that I would need to reflect and see how and whether this was possible.” The claimant asked her how long she had to find an outcome and she says that Emma Loveland said she had 24 hours hence organising a meeting for the following day. The claimant also says, “Whilst taken back by the conversation I had no idea that my job was on the line” (GS/63).[58]The tribunal found that Emma Loveland was understandably losing confidence in the claimant. The claimant had rejected the option of making the accounts private, and she was interpreting what she was asked to do very narrowly, doing the minimum she could get away with, or she thought she could get away with. It is not credible that the claimant, who was very social media savvy, would think that she only needed to take the post down from one account and that she needed time “to reflect” on whether it was possible to separate the accounts.[59]In evidence, the claimant expanded on her reasons for not wanting to make the accounts private. There is a commercial purpose to the accounts as well as a missionary purpose. The claimant offers counselling and courses which she charges for. If the accounts were made private that would restrict people coming to the site.[60]The tribunal does not accept the claimant’s interpretation that she was given 24 hours to take the post down. She had been asked to take the post down nearly three weeks before. Having heard evidence, the tribunal found that Emma Loveland did not say the claimant had 24 hours to take the post down but that the claimant said she would go away and see what she could do, and they agreed to meet the next day. Emma Loveland wanted to find a solution.[61]Emma Loveland sent an email with two actions steps after the meeting (196): “Thank you for meeting with me today 27th February. This followed a meeting you had with Jo last week. You agreed then to removes a specific post. You kindly did so from a platform but it is still online. Following our meeting thank you for agreeing to:• Look at the wifeinthewaiting and remove your connection with this• Look at your online profile and see what posts, following, our discussion, that aren’t a fit with the schools mission statement. This includes ensuring the one you agreed to delete, is no longer on any platform. I will look in the morning and see where we are at. Many thanks”[62]The claimant sent an email in response (192) the next day: “Thank you for your email and raising your concerns about the online profile. I have had the opportunity to review our discussion and have since taken the following actions:• Removed @wifeinthewaiting from all social media pages so that they are not connected.• Change ‘Gozen Soydag’ to only ‘Lady Gozen’.• Removed the post with the Muslim lady from all social media profiles as promised. I am aware that the Google algorithm will take a while to update the changes, but once an update is made all connections with @wifeinthewaiting will not appear alongside my name.”[63]Before the next meeting that day Jo Sanders and Emma Loveland googled the claimant’s name and the KOML post came up again (EL/31, JS/23). The tribunal understand the google algorithm may not have had time to update. However, as indicated above, the respondent had understandably lost confidence in the claimant’s willingness to cooperate with them by this stage. Meeting on 28 February 2023[64]Emma Loveland met with the claimant and told her that her situation was untenable (EL/32). She said (tribunal’s emphasis): “I was conscious that, as the Claimant was a contractor, she was not subject to our disciplinary policy or entitled to notice, and I told her that we were no longer in need of her services. The claimant seemed very surprised and tried to suggest we could talk things through further. However, I explained that, given her role at the School, she was in an influential position and ...it was no longer tenable given that inappropriate messaging still appeared to be being promoted by her...At no point did I criticise the Claimant’s beliefs, or even say that I disagreed with them, but I explained that it was inappropriate for her to be promoting this messaging publicly when the views expressed in that video were so incompatible with the school’s mission statement.”[65]The claimant alleges that Emma Loveland said she was not able to have someone with that mindset working in the school. That is in direct contradiction to Emma Loveland saying that she did not criticise the claimant’s beliefs. We accepted Emma Loveland’s version of the conversation because we found the claimant was understandably upset during the meeting and her evidence about exactly what was said was not clear. Emma Loveland had prepared for the meeting and chose her words carefully.[66]During the conversation Emma Loveland referred to parents’ complaints (GS/69); a parent had said that eighteenth century teaching was being promoted. It was not that Emma Loveland said that; the claimant conceded in cross examination that “the words that came out of her mouth were about eighteenth century teaching”.[67]The claimant agrees the focus of the meeting was about what would happen if someone typed her full name into google and the tag of wife in the waiting would appear (GS/66-71): “Tears began rolling down my face as I realised whatever perception they had of my social media and the posts were so wrong about who I was and so out of line of the work that I had been doing with the students.”[68]It was a difficult conversation. Emma Loveland’s evidence was that the claimant only started to cry when she realised she was going to lose her job. As the claimant said she was not expecting to lose her job we find Emma Loveland’s version of events credible. In the weeks leading up to the meeting the claimant had been doing the minimum possible to address the respondent’s concerns and now she faced the consequences of the respondent losing faith in her ability or willingness to address the issue. The claimant was upset because she suddenly realised that she was going to lose her job and not because of anything that was said about her beliefs.[69]The letter confirming termination of the claimant’s engagement on 28 February 2023 with immediate effect stated: “due to much of your extensive online profile being incompatible with the schools mission statement and ethos, and the fact that despite being asked to remove such incompatible information your profile appears to a large extent to remain unchanged”.[70]That refers to ‘much of’ the claimant’s social media profile being incompatible. Nevertheless, for the reasons set out above, we find that it was the KOML post that caused Emma Loveland to take the decision she did. Emma Loveland explained that she wrote the termination letter having taken advice on the wording. But it was specifically the KOML post that concerned her and we found that was made clear in the meetings leading up to the termination of the contract. Reason for termination of the contract[71]Emma Loveland decided to terminate the contract. The tribunal were satisfied on the basis of the evidence they heard that she was the decision maker. Emma Loveland and Jo Sanders had agreed to speak to the claimant about making the accounts private and removing the KOML post. It was Emma Loveland that made the decision to terminate the claimant’s contract when she found that the KOML post had not been removed. It was not disputed by Mr. Phillips that Emma Loveland was the decision maker. (He was asked about this by the Employment Judge during his cross examination of Jo Sanders (see paragraphs 52 and 53 above)).[72]We considered the reason Emma Loveland acted as she did, taking into account the possibility of subconscious discrimination. The tribunal accepted Emma Loveland’s evidence that it was not because of the claimant’s views that she terminated the claimant’s contract (EL/41). Under cross examination she said that if the claimant had discussed her views in a different forum, say in a bible group discussion, that would not be problematic.[73]Mr. Phillips persistently asked Emma Loveland (and Jo Sanders) in cross examination to imagine a scenario ignoring the KOML post, presumably attempting to establish that they were influenced by other posts, but their consistent response was that the KOML post could not be separated out. Emma Loveland said in evidence, “The post was what triggered everything. We needed it gone.” The tribunal found that credible. As well as finding her a credible witness, it is corroborated by her actions. The claimant was first asked to make the accounts private and she was then given nearly 3 weeks to take the KOML post down. If the objection had been to her views, making the accounts private would not have addressed that and they would be unlikely to give her a generous time period to take the post down. If the post had been taken down then Emma Loveland said in oral evidence, “I think we could have still been working together but it was the fact she didn’t see the issues.” We accepted her evidence that she did not want to lose the pastoral manager for that year group because it was a difficult role to replace but she felt she had to put the students welfare first.[74]Under cross examination Emma Loveland explained that the termination was also related to the claimant’s reaction to the concerns they raised. She was concerned that the claimant did not appreciate that the KOML post was potentially harmful to students in the school who may be vulnerable. She found that quite worrying. The claimant demonstrated no insight or understanding of how her post might affect those families or vulnerable girls learning about relationships. Although there was no indication that the claimant was sharing the views in the video directly with the students the lack of of insight into the possibility that the video was promoting coercive control was concerning.[75]The claimant told the tribunal that she did not know what misogynistic meant and she had to look it up. That suggests a concerning lack of awareness as her role involved the care of 14 year old girls and her job description included teaching them about healthy relationships. As Emma Loveland said in her statement (EL/4): “We want them to have high spiritual and moral standards and to recognise what healthy relationships look like and where to seek support if they find themselves in a relationship which isn’t healthy”.[76]The issue for Emma Loveland was that the KOML post was on social media accounts that the students had access to and indeed, the claimant had been informed that the students were viewing it and at least one student was distressed by it. The school has children from all backgrounds, not just heterosexual married parents and there is statutory guidance to the effect that they all need to feel that they are treated equally.[77]Emma Loveland was concerned by the claimant's apparent inability to see how the KOML video could be harmful and distressing to some of the students whose pastoral care she was responsible for. Her KOML post could discourage pupils and parents from engaging with her as required by her pastoral role (EL/38) (tribunal’s emphasis): “EL/38. In my view, the fact that we had received parental complaints clearly showed that some of what she was posting was undermining parents' confidence in the Claimant who held an important position of trust as she was providing pastoral support to pupils, many vulnerable, in year 10, and therefore put her in breach of the Code of Conduct. “[78]The claimant held an important position of trust because she was providing pastoral support to pupils and her reaction to criticism of the post caused Emma Loveland to lose confidence in her ability to carry out the role (EL/42) (tribunal’s emphasis): “Additionally, whilst I was not aware that she had actively promoted such beliefs to pupils whilst carrying out her role, it was in the back of my mind that the Claimant did work in an unsupervised capacity with our pupils and there was a risk that she may do so. Particularly given that the Claimant appeared to consider that her social media activity was missionary work, and I was aware that she had discussed the Bible with pupils in one to ones. In any event, even if she did not promote these view directly to students, and promoted views that were in line with our ethos and statutory guidance during work, the fact that she publicly promoted different views on social media which the students could see would very likely create confusion in the minds of students.”[79]The reason for termination was also the claimant’s response and conduct when the respondent raised the post as an issue. Jo Sanders had asked the claimant to make the accounts private and the claimant had refused. She had been asked to take the KOML post down, and the claimant said, unreasonably, she thought Jo Sanders meant she had to remove it from only one Instagram account. Emma Loveland, understandably, did not find the claimant’s explanation credible that she thought she only needed to take it down from one account. The claimant would have known that that was not enough to stop the students finding the post. She had been given time to sort it out. In oral evidence Emma Loveland said, “Three weeks when pupils are talking about it is a huge time in a school.”[80]Ultimately, the claimant’s conduct caused Emma Loveland to lose trust and confidence in her. There was no reassurance from the claimant that she understood what was problematic about the video being so accessible to students and that she would not post other material that would discourage students from approaching her in her pastoral role. She did not appear to the respondent to have an understanding of the issue. Emma Loveland felt that social media was more important to the claimant than her responsibilities at the school as pastoral manager.[81]In submissions Mr. Philips argued that a more proportionate step would have been to explain to the parents and pupils the claimant’s right to free speech. However that would not solve the issue which was that students and parents who felt alienated by her views would not be willing to approach her in her pastoral role.[82]In summary Emma Loveland’s concern was the KOML post, its effect on the claimant’s pastoral role in that students and concerned parents might not approach her and the conduct and reaction of the claimant when asked to take it down. Provisions, Criteria and Practices[83]We have considered each alleged provision, criterion and practice listed in the issues: Issue 5.1.1 The requirement that all employees ensure that they are not publicly associated with social media posts deemed controversial in modern society and incompatible with the school’s ethos. To an extent this reflects guidance in the Code of Conduct (paragraph 16 above), but it is more widely drawn. It refers to “deemed controversial in modern society”. The tribunal considered this phrase to be too imprecise to be implied into the PCP. It is not reflected in the Code of Conduct and we were not taken to evidence that suggested a practice or instruction to that effect. The Code of Conduct provides that an employee or worker must not publish any material or comment that could undermine public confidence in them as an employee or worker in a position of trust (575) and we find that was the PCP applied. Issue5.1.2.1 When considering complaints about social media activity the respondent uncritically accepts complaints made by a complainant. The respondent received two complaints from parents on 8 and 9 February 2023 (EL/19. EL/23). They viewed the posts before speaking to the claimant.They did not jump to immediate conclusions or demonstrate a kneejerk reaction. They have a complaints policy which they applied. Emma Loveland spoke to the parents, and they did not pursue their complaints once they were satisfied she understood how upset they were and they did not request any further action. We do not find that that there was a Provision, Criterion or Practice to uncritically accept complaints (“PCP”).5.1.2.2 Give substantial weight to an assertion that a complainant finds the employee’s manifestation of belief offensive. The respondent investigated following information that a student had seen the posts and was upset. Understandably they would give some weight to a concern by a student because they have a responsibility for a student’s welfare. They could not be expected to ignore such concerns, but they conscientiously investigated. We do not find that there was a PCP which gave substantial weight to a complaint.5.1.2.3 Give little or no weight to the employee’s freedom of expression. The approach the respondent adopted to the complaints and the suggestions to the claimant that she made her accounts private or removed one post gave weight to her freedom of expression. We do not find that there was a PCP giving little or no weight to freedom of expression.5.1.2.4 Fail to defend pluralism and diversity of opinions and/or belief. Statutory guidance requires the respondent to be alive to gender stereotypes and misogyny and build a culture where that is not tolerated. The respondent’s actions demonstrate they were very aware of diversity of opinion and pluralism in that they balanced the claimant’s right to freedom of expression against the rights of others who were disadvantaged by a post that did not reflect the guidance.[84]In summary we found that there was a PCP that an employee or worker must not publish any material or comment that could undermine public confidence in them as an employee or worker in a position of trust. The respondent relies on the legitimate aims set out in paragraph 9, issue 5.4 above. The tribunal accept these aims as legitimate because they relate to the welfare of pupils below the age of 18 for which the respondent has responsibility. In order to pursue these aims the pupils (and their parents) need to have confidence in the employee’s or worker’s ability to support them. Requiring them to refrain from posting material that undermined confidence was appropriate and necessary in order to enable them to fulfil their role. Law Discrimination Direct discrimination[85]Section 13 Equality Act 2010 provides that a “person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others”.[86]Thus, direct discrimination takes place where a Claimant is treated less favourably, because of the relevant protected characteristic, than the employer treats or would treat others. This can involve comparing the treatment of a Claimant with that of an actual comparator or comparing the Claimant’s treatment with that which would have been received by a hypothetical comparator.[87]Under Equality Act 2010 section 23, for the purposes of any comparison, there must be no material difference between the circumstances relating to each case.[88]The effect of section 23 is to ensure that any comparison made must be between situations which are genuinely comparable. The case law, however, makes it clear that it is not necessary for a claimant to have an actual comparator to succeed. The comparison can be with a hypothetical comparator. Further, as the Employment Appeal Tribunal and appellate courts have emphasised in a number of cases, including Amnesty International v Ahmed [2009] IRLR 884, in most cases the real question is the “reason why” the decision maker acted as he or she did. Answering that question involves consideration of the mental processes (whether conscious or subconscious) of the alleged discriminator, and it may be possible for the Tribunal to make a finding as to the reason why a person acted as he or she did without the need to concern itself with constructing a hypothetical comparator.[89]In Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337, Lord Nicholls in the House of Lords (NI) said that the Tribunal should focus on the primary question which was why the complainant was treated as he or she was. Did the complainant, because of a protected characteristic, receive less favourable treatment than others?[90]Where the reason for the employer’s conduct is a prohibited reason arising from another party’s discriminatory motivation, then that will be the reason why (per Baroness Hale at paragraph 82 R (European Roma Rights Centre) v Immigration Office at Prague Airport [2005] IRLR 115). Harassment[91]Harassment, contrary to Equality Act 2010 section 26, occurs where a person(a) engages in unwanted conduct related to a relevant protected characteristic, and(b) the conduct has the purpose or effect of violating the other person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the other person. In deciding whether the conduct has the effect referred to at (b), Equality Act 2010 section 26(4) states that each of the following must be taken into account: (a) the perception of the person alleged to have been harassed; (b) the other circumstances of the case;(c) whether it is reasonable for the conduct to have that effect.[92]This entails both a subjective assessment (the perception of the person alleged to have been harassed) and an objective assessment (whether it is reasonable for the conduct to have that effect), as well as consideration of all the other circumstances of the case. The objective assessment is particular to the claimant – was it reasonable for the conduct to have the effect on that particular claimant?[93]Applying the objective aspect of the test means that even unwanted conduct a claimant feels very strongly about will not amount to harassment if it is not, in the view of the tribunal, objectively sufficiently serious as to violate dignity or create an intimidating, hostile, degrading, humiliating or offensive environment. As Elias LJ said in Grant v HM Land Registry [2011] ICR 1390 at Paragraph 47 (a/152): “Tribunals must not cheapen the significance of these words [i.e. the language of s. 26 (1)]. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment” .[94]As for “purpose or effect”, the requisite threshold is high – intending to or causing upset or offence is insufficient – the language used (e.g., “violating” and “degrading”) points to purposes/effects which are serious and marked (Betsi Cadwaladr University Health Board v Hughes EAT 0179/13 and Land Registry v Grant [2011] ICR 1390).[95]The question of whether conduct “related to” a relevant characteristic is determined by the Tribunal, not by the claimant’s perception (Tees Esk and Wear Valleys NHS Foundation Trust v Aslam [2020] IRLR 495).[96]For conduct to be ‘related to’ the protected characteristic of belief, it need not have been done because of the belief, as would be the case in direct discrimination: R (Equal Opportunities Commission) v Secretary of State for Trade and Industry [2007] IRLR 327 (A/84). However, there is a limit to the breadth of the concept, and whether conduct was in fact related to the protected characteristic must be assessed in the context in which the act was done. This was also illustrated in Henderson v General Municipal and Boilermakers Union [2015] IRLR 451 (A/194), Simler J emphasised the need for the tribunal to have regard to the context of the conduct.[97]In Wasteney v East London NHS Foundation Trust [2016] ICR 643 (A/215), the claimant, a born-again Christian, was issued with a written warning for trying to impose her religious views on a junior colleague at work. Eady J held at Paragraph 55 that: “whilst the definition of harassment permits the looser test of “related to”, a clear sense of what the conduct did in fact relate to should permit the employment tribunal to reach a conclusion as to whether it is the manifestation of religion or belief that is in issue or whether it is in fact the complainant's own inappropriate conduct” (A/227).[98]Section 212 EqA means that an action that is complained of must be either direct discrimination or harassment, but it cannot be both. This is because the definition of detriment excludes conduct which amounts to harassment. Indirect Discrimination[99]Equality Act 2010 section 19 provides that: “(1) A person(a) (A) discriminates against another(b) (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s. (2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if – (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,(c) it puts, or would put, B at that disadvantage, and(d) A cannot show it to be a proportionate means of achieving a legitimate aim”.[100]The burden of proof is on the Respondent to establish justification (see Starmer v British Airways [2005] IRLR 862 at paragraph 31).[101]The principle of proportionality requires an objective balance to be struck between the discriminatory effect of the measure and the needs of the undertaking. The more serious the disparate adverse impact, the more cogent must be the justification for it (see Hardys & Hansons plc v Lax [2005] IRLR).[102]It has long been understood that direct and indirect discrimination are mutually exclusive, see Baroness Hale in R v Governing Body of JFS [2009] UKSC 1. Religion or belief as a protected characteristic[103]Section 10 of the Equality Act 2010 is in the terms set out below. “(1) Religion means any religion and a reference to religion includes a reference to a lack of religion. (2) Belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.” Human Rights[104]Section 3, of the Human Rights Act 1998 requires the Employment Tribunals to: “(1) so far as is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the convention rights. (2) This section applies – (a) to primary legislation and subordinate legislation whenever enacted”[105]Article 9 of the European Convention on Human Rights is as set out below. “1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are 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”.[106]Article 10 of the European Convention on Human Rights is as set out below. “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary”.[107]Therefore, whilst the freedom to a belief is protected, the freedom to express or manifest the belief is qualified under Articles 9(2) and 10(2) of the European Convention on Human Rights (“ECHR”). Manifestation of religion or belief[108]In Eweida and others v United Kingdom [2013] ECHR 37, the European Court of Human Rights stated that to count as a manifestation within Article 9 ECHR, there must be a sufficiently close and direct nexus between the act and the underlying belief (see also Higgs v Farmor’s School [2023] ICR 1072, EAT, paragraph 82). In a direct discrimination case, an employer will not be found to have discriminated if the reason for its actions was not the belief but the inappropriate manner in which it was manifested by the employee.[109]In Page v NHS Trust Development Authority [2021] EWCA Civ 255, CA, Underhill LJ approved the distinction from earlier case law, between those cases where the reason for less favourable treatment is the fact that the Claimant holds or manifests a protected belief. This would amount to direct discrimination because of belief. In those cases where the reason for less favourable treatment is that the Claimant has manifested that belief in some particular way to which objection could justifiably be taken it is the objectionable manifestation of the belief, and not the belief itself, which is treated as the reason for the treatment complained of. However, if the consequences of the objectionable manifestation are not such as to justify the action taken against the employee, this cannot sensibly be treated as separate from an objection to the belief itself. Whether an individual's manifestation of their belief is inappropriate should be tested by reference to Article 9(2) of the ECHR. This was described as a proportionality test, balancing the Claimant's freedom against the legitimate interests set out in ECHR Article 9(2). Proportionality Assessment[110]The broad approach to proportionality in cases involving ECHR rights is set out in Bank Mellat v HM Treasury (No 2) [2014] AC 700, SC, where four questions were identified by the Supreme Court, as set out below. “(1) Is the objective of the measure sufficiently important to justify the limitation of the protected right? (2) Is the measure rationally connected to the objective? (3) Could a less intrusive measure have been used without unacceptably compromising the achievement of the objective? (4) Whether, balancing the severity of the measure's effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter?”[111]In Higgs v Farmor’s School [2023] ICR 1072, EAT 51 (at the time of this decision awaiting the outcome of the appeal to the Court of Appeal) the Employment Appeal Tribunal laid down (at paragraph 94) five basic principles that should “underpin the approach” taken when assessing the proportionality of any interference with ECHR Article 9 and Article 10 rights, as set out below. “(1) First, the foundational nature of the rights must be recognised: the freedom to manifest belief (religious or otherwise) and to express views relating to that belief are essential rights in any democracy, whether or not the belief in question is popular or mainstream and even if its expression may offend. (2) Second, those rights are, however, qualified. The manifestation of belief, and free expression, will be protected but not where the law permits the limitation or restriction of such manifestation or expression to the extent necessary for the protection of the rights and freedoms of others. Where such limitation or restriction is objectively justified given the manner of the manifestation or expression, that is not, properly understood, action taken because of, or relating to, the exercise of the rights in question but is by reason of the objectionable manner of the manifestation or expression. (3) Whether a limitation or restriction is objectively justified will always be contextspecific. The fact that the issue arises within a relationship of employment will be relevant, but different considerations will inevitably arise, depending on the nature of that employment. (4) It will always be necessary to ask (per Bank Mellat):(i) whether the objective the employer seeks to achieve is sufficiently important to justify the limitation of the right in question;(ii) whether the limitation is rationally connected to that objective;(iii) whether a less intrusive limitation might be imposed without undermining the achievement of the objective in question; and(iv) whether, balancing the severity of the limitation on the rights of the worker concerned against the importance of the objective, the former outweighs the latter. (5) In answering those questions, within the context of a relationship of employment, the considerations identified by the intervenor are likely to be relevant, such that regard should be had to: (i) the content of the manifestation; (ii) the tone used; (iii) the extent of the manifestation; (iv) the worker’s understanding of the likely audience;(v) the extent and nature of the intrusion on the rights of others, and any consequential impact on the employer’s ability to run its business;(vi) whether the worker has made clear that the views expressed are personal, or whether they might be seen as representing the views of the employer, and whether that might present a reputational risk;(vii) whether there is a potential power imbalance given the nature of the worker’s position or role and that of those whose rights are intruded upon;(viii) the nature of the employer’s business, in particular where there is a potential impact on vulnerable service users or clients;(ix) whether the limitation imposed is the least intrusive measure open to the employer”. Employment Status[112]Section 230(3) Employment Rights Act (“ERA”) 1996 contains a definition of a worker as follows: “ 230 Employees, workers etc. … (3) In this Act “worker” … means an individual who has entered into or works under (or, where the employment has ceased, worked under)—(a) a contract of employment, or(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.”[113]Equality Act 2010 Section 83(2) (2) “Employment” means— (a) employment under a contract of employment, a contract of apprenticeship or a contract personally to do work;[114]The so called “limb (b) worker” contract (ie that referred to in section 230(3) (b)) must contain two elements:(1) C must have entered into a contract whereby he or she undertook to perform work or services for R;(2) C must have agreed personally to perform some work or service for R.[115]However, C is not a limb(b) worker if: (3) He or she carried on a “profession or business undertaking” on their own account so as to be “self-employed”: and (4) R was also a client or customer of C by virtue of the contract: Sejpal v Rodericks Dental Ltd [2022] IRLR 752 at [10] [11]and [35].[116]In Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2QB 497 [at 515 C to D], Mackenna J set out the following test for a contract of service: “A contract of service exists if these three conditions are fulfilled:(i) The servant agrees that, in consideration of a wage or other remuneration, he will provide his own work and skill in the performance of some service for his master,(ii) He agrees, expressly or impliedly that in the performance of that service he will be subject to the other’s control in a sufficient degree to make that other master,(iii) The other provisions of the contract are consistent with it being a contract of service.”[117]This statement of the law has been applied uniformly for many years and has recently been approved in Supreme Court Commissioner for HM Revenue and Customs v Professional Game Match Officials Ltd [2024] UKSC handed down on 16 September 2024.[118]The extent of control in any particular case remains a relevant factor in the overall determination of whether there exists an employment relationship. It must be considered whether the putative employer exercised: “The power of deciding the thing to be done, the way in which it shall be done, the means to be employed in doing it, the time when and the place where it shall be done”. There must exist some “sufficient framework” of control that requires the court to test control by reference to the conditions then prevailing as regards work and employment.[119]The Supreme Court also referred to Autoclenz Ltd v Belcher [2011] UKSC 41. The Supreme Court there said that “The true agreement will often have to be gleaned from all the circumstances of the case, of which the written agreement is only a part.” The House of Lords in Carmichael v National Power Plc [1999] 1 WLR 2042 (where there was an exchange of correspondence between the parties rather than a formal contract) approved the decision of the employment tribunal when it made a finding of a contract of employment existing based on the language of the correspondence, the way in which the relationship had operated and the evidence of the parties as to their understanding of it.[120]With regard to personal service/performance, the issue of substitution is often important ie whether the putative employee can substitute another worker for themselves to provide services to the putative employer (Pimlico Plumbers Ltd v Smith [2017] EWCA Civ 51).[121]With regard the so called “Other factors” referred to in the Ready Mixed Concrete case, in HM Revenue & Customs v Atholl House Productions Ltd [2022] IRLR 698 Sir David Richards emphasised [at paragraph 122 to 123] that applying the multi-factorial approach included considering whether objectively the parties intended to create an employment relationship and whether the person providing services is carrying on a business on their own account. In Market Investigations Ltd v Minister of Social Security [1968] 2QB 173, Cooke J held (at 184G to 185B) that “… the fundamental test to be applied is this: “Is the person who has engaged himself to perform these services performing them as a person in business on his own account”. If the answer to that question is “YES” then the contract is a contract for services. If the answer is “NO” then the contract is a contract of service. He suggested a non-exhaustive list of relevant factors including: “Whether the man performing the services provides his own equipment, whether he hires his own helpers, what degree of financial risk he takes, what degree of responsibility for investment and management he has, and whether and how far he has an opportunity of profiting from sound management in the performance of his task”.[122]As to Limb (b) worker status, the case of Byrne at paragraph 17(4) – to (5) provides further helpful guidance: “… 5. Drawing the distinction in any case will involve all or most of the same considerations as arise in drawing the distinction between a contract of service and contract for services – but with the boundary pushed further in the putative worker’s favour. It may for example be relevant to assess the degree of control exercised by the putative employer, the exclusivity of the engagement and its typical duration, the method of payment, what equipment the putative worker supplies, the level of risk undertaken etc. The basic effect of limb (b) is, so to speak to lower the pass-mark so that cases which fail to reach the mark necessary to qualify for protection as employees might nevertheless do so as workers.”[123]The following factors were emphasised in Byrne:a. Subordination and dependency: the legislation’s purposes is to extend protection to workers who are substantively and economically, in the same subordinate and dependent position as employees”;b. Dominant purpose/Feature test: in James v Redcats (Brands) Ltd [2007] IRLR 296 Elias J noted at [53] that courts previously asked whether the “dominant purpose” “of the contract is the provision of personal services or whether that is an ancillary or incidental feature. Notice Pay[124]The Tribunal’s jurisdiction to hear a claim for breach of employment contract arises under s. 3(2) of the Employment Tribunals Act and Article 3 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 SI 1994/1623. For a tribunal to be able to hear a contractual claim that claim must arise or be outstanding on the termination of an employee’s employment and seek damages for breach of a contract of employment or any other contract connected with employment. It only applies to employees; it does not apply to workers. Submissions[125]Both parties made full written submissions which they then expanded upon orally. They were permitted one hour each to do so. Both sets of written submissions are referred to where appropriate in this Judgment. Conclusions Employment status and notice pay
Conclusions
[126]Issue 1: We found that the claimant entered into a contract with the respondent for services, undertaking to do the work personally. She could not substitute someone to do the work in her place. The claimant told the respondent she wanted flexibility so that she could pursue other roles but in reality we found the respondent was not her client or customer. She was working for the respondent for 4 days a week in term time. Although it may have been her intention to build up a consultancy business she spent a substantial portion of her time working for the respondent.[127]We decided the claimant was not an employee within the narrower definition in the ERA 1996 because in practice she was not line managed, there was no probationary period or appraisals and she was not expected to attend the inset day on the first day of term. She had negotiated to be self employed because she wanted flexibility and she was paid for her work by the day and chose to invoice through a company. While the parties’ perception of their own status is only one factor to take into account, the bargaining power of the parties can be persuasive. The respondent had been prepared to offer the claimant an employment contract but the claimant herself wanted to be self-employed and negotiated for that (paragraphs 28-33 above).[128]Standing back, taking into account the intention of the parties and the reality of the relationship we concluded that the actual status of the claimant was that she was a ‘limb b’ worker within the definition of the Employment Rights Act 1996 and an employee within the definition of the Equality Act 2010.[129]Issue 2: As we have found the claimant was a worker and not an employee we do not have jurisdiction to determine a claim for breach of contract. If she had been an employee, we would have found that a period of notice was not agreed. The claimant was only paid for days she worked, which is not compatible with an implied term of notice. She was aware that she was covering for a member of staff off sick and the length of time for which she would be needed was not capable of being determined. There was no expectation that the claimant had to give notice herself and she could have chosen to leave at any time. If the claimant had been an employee our finding would have been that she was entitled to statutory notice only (paragraphs 34-36 above). Discrimination[130]The claimant claims harassment, direct discrimination and indirect discrimination. We considered firstly, whether the alleged conduct amounted to harassment and then, if it did not, whether it amounted to direct discrimination. Finally, we considered indirect discrimination.[131]Section 212 of the Equality Act 2010 states that detriment cannot include conduct which amounts to harassment. The test for harassment (“relates to” the protected characteristic) is broader than the direct discrimination test (“because of” the protected characteristic). Harassment and censorship[132]There was an overlap between our analysis of the facts relevant to harassment and the alleged detriment of censorship because we took into account that censorship could be brought about by the creation of an intimidating and hostile environment. We kept in mind that the test for harassment differs from that for detriment (censorship). The reason why a person acted as they did is not part of the statutory test for harassment, the test is the purpose and effect of the respondent’s conduct.[133]Issue 7: The allegations relating to conduct by the respondent on 9 February 2023 occurred outside the primary limitation limit. We accept that they were brought within the statutory time limit because they are closely linked with the meetings on 27 and 28 February 2023.[134]Issue 6.1.1 and 4.2.1.1: We consider that Jo Sanders’ words on 9 February 2023 (“that if a man made the same statements it would be misogynistic”) did not amount to harassment or have the effect of censoring the claimant (paragraphs 43-54 above). While it was unwanted conduct for the claimant to experience challenge to the post on the grounds it may be perceived as misogynistic, it was a reasonable comment to make in the context of a discussion about how the post may be perceived. The claimant says she had to look up what misogynist meant. It follows she cannot have been upset at the time but we accept she may have been when she found out what it meant and she read about Andrew Tate. That outcome demonstrates the value of free speech. The claimant had learnt about something that was highly relevant to her work with 14-15 year old girls.[135]We did not find that the purpose or effect of the conversation was to violate the claimant’s dignity or create an intimidating, hostile, degrading, humiliating or offensive environment. Jo Sanders was putting forward a viewpoint. The claimant said she had posted the video for discussion. If she took offence we find that was not a reasonable reaction in the circumstances.[136]Issue 6.1.2 and 4.2.1.2: The claimant was asked by Jo Sanders to alter the settings on her social media accounts so that they were private. When the claimant refused to make her accounts private Jo Sanders did not press her but asked her to remove the KOML post. The claimant did not comply fully, removing the post from only one account as a “goodwill gesture”. The claimant left the meeting on 9 February 2023 on good terms. We found the conversation did not have the effect proscribed by section 26 Equality Act 2010 and did not intimidate her to the extent that her social media activity was censored.[137]The respondent had previously spoken to another employee about making settings private and the employee had agreed to do so. The respondent had requested the claimant to do the same, not understanding the commercial and missionary aspect of the accounts. They thought the claimant would be happy to make the accounts private once she realized the students were talking about the KOML post. Their intention was not to create the environment proscribed by s.26 Equality Act 2010, they were simply trying to find a pragmatic solution to the problem.[138]Issue 6.1.3 and 4.2.1.3: At the meeting on 27 February 2023 the claimant says that she was told to ensure that any Google search of her name would not appear in the same result as KOML on @ Wife In The Waiting and she was given 24 hours to achieve that. We found the claimant was not given a 24-hour ultimatum because she had been asked to take the post down nearly 3 weeks before. We found Emma Loveland was continuing to try and find a way to work with the claimant if a solution could be found. It was reasonable to ask the claimant if she could separate the KOML post from her name. In the context of the discussions that had been taking place it was not a reasonable reaction of the claimant to take offence. (Paragraphs 55-63 above).[139]Issue 6.1.4 and 4.2.1.4: At the meeting on 27 February 2023 the claimant says she was accused of failing to take the KOML post down from her other accounts. The claimant conceded that she had not taken it down from the @ Wife in the Waiting account. It was not reasonable for the claimant to take offence about an observation she accepted as true.[140]Issue 6.1.5 and 4.2.1.5: The claimant says Emma Loveland criticized her actual or perceived beliefs. We found that she did not. In respect of the comment about eighteenth century teaching, Emma Loveland was passing on what a parent had said. As with the comment about misogyny, that was a reasonable viewpoint to express in relation to the KOML post (paragraph 134 above). The claimant said that she was posting the KOML video because she was open to discussion about it. She cannot reasonably take offence at reasonable opinions being expressed about it or to assert that offering an opinion was censorship.[141]Issue 6.1.6 and 4.2.2: The final meeting on 28 February 2023 is included in the list of issues under harassment and as a direct discrimination detriment. We deal with the issue of termination under direct discrimination below. In terms of the meeting itself we accept the claimant was upset at the meeting, but we found that was because she realised she was about to lose her job. She did not refer to specific words that caused the proscribed effect, other than she felt misunderstood (paragraph 68 above).[142]In summary we have found that the alleged acts of harassment did not have the purpose or proscribed effect set out in section 26 Equality Act 2010, or to the extent to which they did have the effect, it was not reasonable for them to have that effect on the claimant. They did not amount to censoring the claimant’s social media activity because they did not meet the threshold for harassment and did not intimidate her into changing her social media activity.[143]The claimant was asked to remove one post from being connected with her name. That was not harassment but a reasonable instruction. We deal with that under direct discrimination below. Direct discrimination[144]A claim for direct discrimination requires the claimant to establish less favourable treatment. We did not hear persuasive evidence that she was singled out for different treatment because of her protected characteristic. The evidence of Emma Loveland and Jo Sanders was that anyone who breached policy would be treated in the same way (indeed that forms the basis of the claimant’s indirect discrimination claim and appears to have been accepted by Mr. Phillips at paragraph 59 of his written submissions). Nevertheless, we went on to consider direct discrimination because we found it convenient to start with ‘the reason why’ the respondent acted as it did.[145]We went straight to the ‘reason why’ test (Shamoon) rather than consider whether the burden of proof shifted. We decided this approach was appropriate because it does not disadvantage the claimant and Ms. Cunningham appeared to accept the approach in her written submissions. Moreover, there was not an actual comparator and in attempting to construct a hypothetical comparator the tribunal would be required to grapple with the “reason why” question in any event.[146]We were satisfied that Emma Loveland was the decision maker in respect of the decision to terminate the claimant’s contract. That was not disputed by the claimant (paragraph 71 above). Our factual findings shed light on Emma Loveland’s mental processes (paragraphs 71-82 above). We made inferences from objective facts in order to take into account the possibility of subconscious discriminatory motives. Emma Loveland (and Jo Sanders) were initially prepared to deal with the situation by asking the claimant to make her accounts private. When the claimant refused to do so the claimant was asked to remove one post, the KOML post. We decided those actions alone would not have been acceptable to Emma Loveland if she was acting because she disapproved of the claimant’s beliefs or the manifestation itself. She was prepared to allow the claimant to express her beliefs as long as one particular post, the KOML post, was not connected to her name such that it could be found by the students for whom the claimant had pastoral responsibility.[147]We were satisfied that other posts on the claimant’s accounts, while referred to in the email terminating the contract and in Jo Sanders’ statement, were not the reason Emma Loveland or Jo Sanders acted as they did. Emma Loveland would not have terminated the claimant’s contract if the claimant had taken the KOML post down or made her accounts private.[148]We also found that Emma Loveland reasonably lost confidence in the claimant because of the way the claimant responded to the request to take the KOML post down. The claimant did the minimum she thought she could get away with, taking it down from one account but leaving it on another linked account.[149]The tribunal evaluated whether there was a nexus between the claimant’s complementarianism views and the KOML post (paragraphs 38-41 above). We found there was, at the relevant time, a sufficient and direct nexus between the posting of the KOML video and the claimant’s consequent association with it to fall within a manifestation of her religious beliefs, albeit the claimant herself was not clear in evidence about this. We concluded that posting the video as she understood it at the time was a manifestation of her beliefs.[150]Although Mr. Phillips did not confirm whether the claimant was relying on religious as opposed to philosophical beliefs, it was clear to the tribunal that the claimant’s evidence was that her belief in a hierarchy within marriage arises out of her religious beliefs.[151]In any event, it would not alter our finding if it had been argued that the post was a manifestation of a philosophical belief in traditional marriage and the nuclear family, because our finding would be that the respondent acted as it did because of the manner in which the claimant manifested the belief.[152]We considered whether interference with the manifestation was proportionate under Article 9(2) of the ECHR; whether it was prescribed by law such that the claimant was aware of the consequences of her actions and proportionate in a democratic society for the protection of the health and the rights and freedoms of others.[153]We were satisfied that it was prescribed by law because the respondent’s code of conduct and policies complied with law governing the employment relationship. The claimant had read them and ought to have been able to foresee that the outcome could be termination of her contract if they were breached. It was made clear that they applied to workers as well as employees. (Paragraphs 11-19 above).[154]Having decided that the actions of the respondent were prescribed by law we considered whether the actions were proportionate to protect the health and rights and freedoms of others. The tribunal approached the task by reference to the guidance in Bank Mellat and Higgs.[155]The objective was the pastoral care of potentially vulnerable 14 years old girls and the tribunal was satisfied that is sufficiently important to justify the limitation of the right. The respondent had both a duty and opportunity to support the girls at a formative time of their life. They were entitled to pastoral support and the claimant’s role was to provide that support. It included being alive to gender stereotypes and misogyny and supporting them to foster healthy relationships.[156]We found the reason for Emma Loveland’s actions was the KOML post, specifically the content, tone and extent of the manifestation of the claimant’s belief in a hierarchy within marriage. The KOML post, on our own objective analysis, advocated for relationships of coercive control. We find it credible that Emma Loveland would not want the girls to see that post associated with the person to whom they were expected to go for pastoral support. Emma Loveland was also concerned about the claimant’s lack of insight into the problem. The claimant’s core role was to provide support, but she was unable or unwilling to understand how the KOML post could be perceived as misogynistic or could deter girls from going to her for support. Students could also be reluctant to seek the claimant’s support if they felt she did not approve of the type of relationship they or their parents were in. There was evidence of this as the KOML video had initially come to the respondent’s attention because a student was upset by it.[157]The claimant knew her students were the likely audience because she was told that the students were talking about it and 2 parents had complained. Although the claimant did not refer to her connection with the school on the accounts, she was not willing to disassociate the school from them either. She had no controls on her accounts to stop students finding them and she did not want to put any in place.[158]The respondent initially suggested less intrusive limitations, making her accounts private or taking the KOML video down. Mr. Phillips suggested that a less intrusive measure would be to explain to the students and parents that the claimant was entitled to her views and free speech (written submissions paragraph 95.2). The tribunal decided that it would not be enough to make vulnerable students comfortable to go to the claimant for support. The difference between the KOML video and a healthy relationship would create confusion, especially as the claimant herself appeared to agree with it in the caption she posted.[159]In summary we found that the respondent’s reasons for its actions were not because of the manifestation itself but were because they reasonably objected to the inappropriate manifestation of the claimant’s beliefs and because of the claimant’s subsequent conduct when they tried to address it. The interference with the claimant’s right of expression was proportionate and justified. The students were at a formative age and were entitled to pastoral support. Balancing that against the request to take down one post we find the balance lies in favour of the students, and accordingly the respondent who held responsibility for their pastoral care. Indirect discrimination[160]We found the respondent had a provision, criterion or practice (PCP) which in part reflected that set out at 5.1.1; they had a requirement that all employees were not publicly associated with social media posts that were incompatible with the school’s ethos and could undermine public confidence in them as an employee or worker in a position of trust (paragraph 83 above).[161]The full PCP set out at 5.1.1 was that they should also not be publicly associated with social media posts ‘deemed controversial in modern society’. We found that phrase was too wide ranging and unclear to form part of the PCP. We did not find it reflected in any evidence before us.[162]We found the claimant’s case for indirect discrimination unclear. Section 19 Equality Act 2010 requires the tribunal to decide whether a PCP put those with the relevant protected characteristic at a particular disadvantage. In order to test whether there is a group disadvantage a pool of people is constructed for comparison. The pool is split into people with the characteristic and people without it. If the people with the protected characteristic make up a significantly higher proportion of the negatively affected group than the people with the protected characteristic that is good evidence of a particular disadvantage.[163]Mr. Phillips argued that a group who share the claimant’s beliefs about marriage and complementarity of sexes are put at a particular disadvantage by this PCP in that those beliefs are controversial in wider society and likely to attract criticism (written submissions, paragraph 67, particulars of claim paragraph 37). However, under the PCP, anyone in the pool who is associated with a social media post that could undermine public confidence in them as an employee or worker in a position of trust would be treated in the same way. Virtually everyone may hold a view that is controversial, not just those who believe in complementarianism. The tribunal did not hear clear evidence that the PCP gave rise to group disadvantage.[164]In any event we were satisfied that the PCP is a proportionate means of achieving a legitimate aim. As discussed at paragraph 155 above it is a legitimate aim to protect girls at a formative age, who were potentially very vulnerable to misogyny and gender stereotyping. The PCP was an appropriate and reasonable and necessary way to achieve those aims. It was necessary to ensure employees and workers were aligned with the respondent’s teaching of equity, equality and tolerance because that would enable the respondent to achieve the aim of guiding the students in preparation for adult life and comply with its pastoral obligations.[165]We found the respondent did not have the alleged Provisions, Criteria and Practices alleged in issues 5.1.2. Even if they did have them, for the same reason as our findings below, we would have found that they were a proportionate means of applying a legitimate aim. Summary[166]Accordingly, the claimant’s claims are not upheld and are dismissed. Approved by: