“Dear Mr Evans, I’ve noticed that a member of your staff who works directly with children has been posting homophobic and prejudiced views against the lgbt community on Facebook. I’m concerned that this individual may exert influence over the vulnerable pupils that may end up in isolation for whatever reason. I find these views offensive and I am sure that when you look into it, you will understand my concern. I’d rather remain anonymous as the person in question is … . I’ve attached a couple of screen shots so you can see what I’m referring to.”
“**PLEASE READ THIS! THEY ARE BRAINWASHING OUR CHILDREN!** On November 7th the Government Consultation into making Relationships Education mandatory in primary schools, and Relationships and Sex Education mandatory in secondary schools closes. Which means, for example, that children will be taught that all relationships are equally valid and ‘normal’, so that same sex marriage is exactly the same as traditional marriage, and that gender is a matter of choice, not biology, so that it’s up to them what sex they are. At the same time it means that expressing and teaching fundamental Christian beliefs, relating to the creation of men and women and marriage will in practice become forbidden – because they conflict with the new morality and are seen as indoctrination into unacceptable religious bigotry. Which means that freedom of belief will be destroyed, with freedom of speech permitted only for those who toe the party line! We say again, this is a vicious form of totalitarianism aimed at suppressing Christianity and removing it from the public arena. ***Please sign this petition, they have already started to brainwash our innocent wonderfully created children and its happening in our local primary school now***”
“I’m aware that not everyone has liberal views like myself but I do feel that people working directly with children should refrain from posting this type of view on social media. I know of several children at Farmors who might fit into the category of person your staff member seems to find so obnoxious, friends of my children even.”
“While normal Americans are busy at work trying to provide for their families, liberal school systems are busy indoctrinating their children. Kindergarten and first grade children are being primed for a gender fluid society. Of course, the schools are introducing the propaganda in the name of anti-bullying campaigns, but we know better. They are busy recruiting children for the transgender roster. Their agenda is not about bullying. They are using our children to promote their gender free society of madness. … They are stealing the innocence of our children with a devious scheme to supplant traditional gender roles by differentiating a child’s gender assignment at birth with his perceived gender. … Not succumbing to the brainwashing of deranged educators is now a characteristic of bullying. The far-left zealots have hijacked the learning environment, and they insist on cramming their perverted vision of gender fluidity down the throats of unsuspecting school children who are a government mandated captive audience. … … Lying to children and convincing them that they can be anything they want to be when in reality they can’t is a form of child abuse, especially when it entails the changing of one’s genitalia or ingesting hormones. The LBGT [sic] crowd with the assistance of the progressive school systems are destroying the minds of normal children by promoting mental illness. Delusional thinking is a form of psychotic thinking, and we have professionals promoting it to our young kids.”
“Yes. I am not against gay, lesbian or transgender people. It’s about making sure people are aware of what’s going on in the primary school. It’s not about the schools, they are just following government policy, it’s about the government.”
“I don’t regret making the posts, it’s about the children in the primary school. I don’t have any issues with gay, lesbian or transgender people, I love all people.”
“I know that there are transgenders and gays who do have the same beliefs as me. … I am not against gay people, it doesn’t say that.”
“No I don’t. Students know me and I know gay students, I wouldn’t treat any of them any different. … I wouldn’t bring this into school.”
“People should know my belief … as people on [Facebook] … are my friends. They would know me as a person and know I wouldn’t discriminate. If anything I am being discriminated against as I have shared what the government is doing, this is what I stand for …”
“We discussed whether the two posts were yours and your position was that you were simply reposting existing articles and had only added a few words; they were not your posts. However, you confirmed that you had read the articles you re-posted and agreed with the content of them. Indeed, you wanted these articles to be circulated more widely as you felt it important for people to be aware of the content. We discussed at length whether the language used within these posts could be deemed as offensive or discriminatory and highlighted the specific words ‘brainwashing, transgender roster, madness, devious scheme, child abuse and mental illness’ amongst others (I will not repeat them all here). We were keen to understand whether, upon reflection, you understood that the use of such language could be deemed as offensive and that it has the ability to cause damage to the reputation of the school. You stressed that whilst you may not have chosen to use the same language as used in the articles, you agreed with the content and upon reflection you would not have acted differently. When asked specifically what language you would not use you identified the words brainwashing, delusional thinking and psychotic thinking. You did not say you would not endorse or use any of the other words.”
“You were unable to confirm that you would not do it again, only qualifying that you would not have used the word ‘brainwashing’ and would have added a link to the articles.”
“Regarding bringing the school into disrepute/damaging the reputation of the school, we agree that there is no direct evidence that as a matter of fact the reputation of the school has to date been damaged. The complainant did not appear to be criticising the school and Sue Dorey confirmed that to her knowledge, no other complaints had been received. You said that you were only sharing these posts with your Facebook friends, that you make no reference to working at Farmor’s on your Facebook page and use your maiden name. However, you also said that your friends know where you work, that you are a local girl, went to Farmor’s school as a child and have lived locally for years and people know you. Some of your friends are also members of staff at the school and others parents of pupils at Farmor’s. You affirmed that you were aware that your posts could be reposted and seen by others outside your immediate ‘Facebook Friends’ group. We considered that these posts have the potential to be reposted and therefore potentially reach a far wider audience, many of whom will know you and your maiden name and where you work due to your local connections and long history in the area. Once posted, you lose a degree of control. You had also expressed your view that it was your intention to get the message across to others and you hoped it would be reposted. You confirmed that you had not removed the posts. We therefore concluded that whilst there was no actual evidence that the school’s reputation had to date been harmed, there was the potential that it could be. Whilst we also agree that it is unlikely that anyone reading these posts would consider that they represented the school’s views, we were concerned that there was sufficient association with the school by way of the fact that you and your place of work is well known locally and were therefore satisfied that your posts via facebook could have and may still bring the school into disrepute.”
“Having made the finding of gross misconduct, we next considered the appropriate sanction. We had regard to the school’s Conduct Policy section 6.1 where it is stated that in the absence of exceptional mitigating circumstances, offences of gross misconduct will result in summary dismissal. We had regard to the fact that we felt that throughout the hearing you were at times evasive, contradictory and despite having had time to reflect on your actions, appeared to have no insight into the impact that your posts had on the complainant, were dismissive of those that could take offence, calling them liberals and were unable to give us confidence that such actions would not be repeated. You had not removed the posts. We were concerned that upon reflection you demonstrated no understanding of the implications of your actions and how this may reflect upon your professional reputation as well as that of the school within the community which we serve. However, we also took into account that there were no complaints concerning your standards of work, we were unaware of any other disciplinary matters, that the posts had been made in the context of your personal facebook account and that you had six years’ service with the school. Overall we were not satisfied that any lower level of disciplinary sanction would be appropriate in view of the nature of your misconduct and your lack of understanding of the potential impact upon the school. We concluded that there were no exceptional mitigating circumstances and therefore concluded that the correct sanction was summary dismissal.”
“(a) Lack of belief in ‘gender fluidity’. (b) Lack of belief that someone could change their biological sex/gender. (c) Belief in marriage as a divinely instituted life-long union between one man and one woman. (d) Lack of belief in ‘same sex marriage’. Whilst she recognises the legalisation of same sex marriage she believes that this is contrary to Biblical teaching. (e) Opposition to sex and/or relationship education for primary school children. (f) A belief that she should ‘witness’ to the world, that is when unbiblical ideas/ideologies are promoted, she would publicly witness to Biblical truth. (g) A belief in the literal truth of the Bible, and in particular Genesis 1 v. 27: ‘God created man in His own image, in the image of God He created him; male and female He created them’”
“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.”
“Religious freedom is primarily a matter of individual thought and conscience. This aspect of the right set out in the first paragraph of Article 9, to hold any religious belief and to change religion or belief, is absolute and unqualified. However, as further set out in Article 9 §1, freedom of religion also encompasses the freedom to manifest one’s belief, alone and in private but also to practice in community with others and in public. The manifestation of religious belief may take the form of worship, teaching, practice and observance. Bearing witness in words and deeds is bound up with the existence of religious convictions (see Kokkinakis, cited above, §31 and also Leyla Şahin v. Turkey [GC], no. 44774/98, §105, ECHR 2005-XI, 44 EHRR 5). Since the manifestation by one person of his or her religious belief may have an impact on others, the drafters of the Convention qualified this aspect of freedom of religion in the manner set out in Article 9 §2. This second paragraph provides that any limitation placed on a person’s freedom to manifest religion or belief must be prescribed by law and necessary in a democratic society in pursuit of one or more of the legitimate aims set out therein.”
“(1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (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.”
“In order to count as a ‘manifestation’ within the meaning of Article 9, the act in question must be intimately linked to the religion or belief. An example would be an act of worship or devotion which forms part of the practice of a religion or belief in a generally recognised form. However, the manifestation of religion or belief is not limited to such acts; the existence of a sufficiently close and direct nexus between the act and the underlying belief must be determined on the facts of each case.”
“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.”
“Nothing in [the] Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”
“A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”
“(1) A person (A) discriminates against another (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. (3) The relevant protected characteristics are — … religion or belief; ... .”
“The purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of religion or belief [my emphasis], disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment.”
“This Directive shall be without prejudice to measures laid down by national law which, in a democratic society, are necessary for public security, for the maintenance of public order and the prevention of criminal offences, for the protection of health and for the protection of the rights and freedoms of others.”
“In so far as the ECHR and, subsequently, the Charter The reference to “the Charter” is to the Charter of Fundamental Rights of the European Union (2000/C 364/01). The CJEU’s reference to it adds nothing to the point based on the Convention, and in the interests of simplicity, and because the Convention remains part of UK law and the Charter does notI will in this judgment refer only to the former. use the term ‘religion’ in a broad sense, in that they include in it the freedom of persons to manifest their religion, the EU legislature must be considered to have intended to take the same approach when adopting Directive 2000/78, and therefore the concept of ‘religion’ in Article 1 of that directive should be interpreted as covering both the forum internum, that is the fact of having a belief, and the forum externum, that is the manifestation of religious faith in public.”
“56. I would endorse and gratefully adopt the passages I have cited as correct statements of law. They recognise that there may in principle be a distinction between the protected disclosure of information and conduct associated with or consequent on the making of the disclosure. For example, a decision-maker might legitimately distinguish between the protected disclosure itself, and the offensive or abusive manner in which it was made, or the fact that it involved irresponsible conduct such as hacking into the employer’s computer system to demonstrate its validity. In a case which depends on identifying, as a matter of fact, the real reason that operated in the mind of a relevant decision-maker in deciding to dismiss (or in relation to other detrimental treatment), common sense and fairness dictate that tribunals should be able to recognise such a distinction and separate out a feature (or features) of the conduct relied on by the decision-maker that is genuinely separate from the making of the protected disclosure itself. In such cases, as Underhill LJ observed in Page This is not the case of Page v NHS Trust Development Authority which I consider in detail below but the separate(though related) case of Page v Lord Chancellor[2021] EWCA Civ 254 ,[2022] ICR 924 . , the protected disclosure is the context for the impugned treatment, but it is not the reason itself. 57. Thus the ‘separability principle’ is not a rule of law or a basis for deeming an employer’s reason to be anything other than the facts disclose it to be. It is simply a label that identifies what may in a particular case be a necessary step in the process of determining what as a matter of fact was the real reason for impugned treatment. Once the reasons for particular treatment have been identified by the fact-finding tribunal, it must evaluate whether the reasons so identified are separate from the protected disclosure, or whether they are so closely connected with it that a distinction cannot fairly and sensibly be drawn. Were this exercise not permissible, the effect would be that whistle-blowers would have immunity for behaviour or conduct related to the making of a protected disclosure no matter how bad, and employers would be obliged to ensure that they are not adversely treated, again no matter how bad the associated behaviour or conduct.”
“Employees who bring complaints often do so in ways that are, viewed objectively, unreasonable. It would certainly be contrary to the policy of the anti-victimisation provisions if employers were able to take steps against employees simply because in making a complaint they had, say, used intemperate language or made inaccurate statements. An employer who purports to object to ‘ordinary’ unreasonable behaviour of that kind should be treated as objecting to the complaint itself, and we would expect tribunals to be slow to recognise a distinction between the complaint and the way it is made save in clear cases.”
“The Court further reiterates that freedom of expression, as secured in Article 10 §1 of the Convention, constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to Article 10 §2, it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those which offend, shock or disturb; such are the demands of pluralism, tolerance and broad-mindedness, without which there is no ‘democratic society’ … . Although freedom of expression may be subject to exceptions, they ‘must be narrowly interpreted’ and ‘the necessity for any restrictions must be convincingly established’ (see, for instance, ObserverandGuardian v the United Kingdom,26 November 1991 , §59, Series A no. 216).”
“Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative … Freedom only to speak inoffensively is not worth having ...”
“The concept of a chilling effect in the context of freedom of expression is an extremely important one. It often arises in discussions about what if any restrictions on journalistic activity are lawful; but in my judgment it is equally important when considering the rights of private citizens to express their views within the limits of the law, including and one might say in particular, on controversial matters of public interest.”
“I do not think that there needs to be any such rule. It is, ultimately, the Act from which the claimant’s rights must derive, and there can be nothing wrong in a tribunal taking that as the primary basis of its analysis.”
“It might be thought to follow that [the authority] cannot have discriminated against him on the grounds of his religion or belief, since the relevant protections under the Convention and the 2010 Act must be intended to be co-extensive. In my view that is indeed the case, but that does not absolve me from considering the issues through the lens of the 2010 Act, which must be the formal basis of the Appellant’s claim.”
“In a direct discrimination claim the essential question is whether the act complained of was done because of the protected characteristic, or, to put the same thing another way, whether the protected characteristic was the reason for it … It is thus necessary in every case properly to characterise the putative discriminator’s reason for acting. In the context of the protected characteristic of religion or belief the EAT case-law has recognised a distinction between (1) the case where the reason is the fact that the claimant holds and/or manifests the protected belief, and (2) the case where the reason is that the claimant had manifested that belief in some particular way to which objection could justifiably be taken. In the latter case it is the objectionable manifestation of the belief, and not the belief itself, which is treated as the reason for the act complained of. Of course, if the circumstances The judgment in fact says “consequences”, but I think this must bea slip. are not such as to justify the act complained of, they cannot sensibly be treated as separate from an objection to the belief itself.”
“54. In domestic law, the expression of right and limitation – as allowed byArticle 9 of the Convention – is most easily discernible when addressing cases of indirect discrimination under section 19 EqA (which may be the more obvious route of challenge in most cases involving the manifestation of a religious belief). Whilst there is no statutory means of ‘justifying’ direct discrimination or harassment, however, the Claimant accepts that the limitations permitted by Article 9.2 are relevant to the approach to be adopted to claims brought under sections 13 (direct discrimination) and 26 (harassment). Although the Claimant relies on the protection of the right to manifest religious belief in the workplace, as recognised by the ECHR in Eweida, she (correctly) does not seek to suggest that right cannot be subject to limitation. 55. The concession is in some senses easier to state than apply, but the task will always be made easier by having a clear understanding of the nature of the claim and how it is being put. If the case is one of direct discrimination then the focus on the reason why the less favourable treatment occurred should permit an ET to identify those cases where the treatment is not because of the manifestation of the religion or belief but because of the inappropriate manner of the manifestation (where what is ‘inappropriate’ may be tested by reference to Article 9.2 and the case-law in that respect); see [Chondol] and [Grace]. Similarly, 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 ET 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 (and that must be right, otherwise an employer’s attempt to discipline an employee for the harassment of a co-worker related to (e.g.) the co-worker’s religion or belief could itself be characterised as harassment related to that protected characteristic).”
“Once that point has been clarified, the Tribunal’s reasoning is clear. Para. 71 applies the distinction which I have discussed at paras. 68-69 above. The Authority took disciplinary action against the Appellant not because he was a Christian or because he held the traditional family belief but because he expressed the latter belief (and his other views about homosexuality) in the national media in circumstances which, on the Tribunal’s findings, justified the action taken.”
“So far as I am aware the distinction applied by the Tribunal has not been endorsed in this Court, but it is in my view plainly correct. It conforms to the orthodox analysis deriving from Nagarajan: in such a case the ‘mental processes’ which cause the respondent to act do not involve the belief but only its objectionable manifestation. An analogous distinction can be found in other areas of employment law – see paras. 19-21 of my judgment in Morris v Metrolink RATP DEV Ltd[2018] EWCA Civ 1358 ,[2019] ICR 90 This is a case involving discrimination on the ground of taking part in trade union activities. It is among the authorities reviewed by Simler LJ in Kong. . Also, and importantly, although it gets there by a different route (because the provisions in question are drafted in very different ways), the recognition of that distinction in the application of section 13 achieves substantially the same result as the distinction inarticle 9 of the Convention between the absolute right to hold a religious or other belief and the qualified right to manifest it. It is obviously highly desirable that the domestic and Convention jurisprudence should correspond.”
“The distinction between [direct and indirect discrimination] is a fundamental element of this area of EU legislation. There is in my view no reason to depart from it, with the inevitable loss of legal certainty that would result.”
“63. We concluded that not only the dismissal but the entire proceedings taken against Mrs Higgs were motivated by a concern on the part of the School that, by reason of her posts, she would be perceived as holding unacceptable views in relation to gay and trans people – views which in fact she vehemently denied that she did hold. 64. In short, that action was not on the ground of the beliefs but rather for a completely different reason, namely that as a result of her actions she might reasonably be perceived as holding beliefs that would not qualify for protection within the Equality Act (and, as we say, beliefs that she denied having).”
“65. It is important to bear in mind that this was not a claim of unfair dismissal. We were not concerned to decide whether the School’s actions were reasonable or not. It might be contended that there was a different course of action the school could have taken, in the light of the position made clear by Mrs Higgs in the disciplinary process. Since she denied being homophobic or transphobic, a reasonable employer might have taken the view that justice would be served by her (or the School) making it clear that if anyone thought she held those views they had got ‘the wrong end of the stick’ – that pupils and parents should not be concerned that she would demonstrate any sort of hostility to gay or trans pupils (or indeed gay or trans parents). 66. That was not a subject canvassed before us, for the simple reason that it was irrelevant to our considerations. Our only task was to decide if there was a causal connection between the beliefs in paragraph 30 and the treatment meted out to Mrs Higgs.”
“70. It was possible to see some sort of connection between her beliefs and [the treatment complained of]. The posts in question clearly expressed those beliefs both in relation to same sex marriage and gender fluidity. However, as we have said, her treatment was not a consequence of her expressing those beliefs in a temperate and rational way. Rather, it was because the School felt that the language used in those posts might reasonably lead someone who read them to conclude that she held views (homophobic and transphobic) that she expressly rejected [emphasis supplied]. 71. The essence of the protection from harassment is that a claimant should be entitled to hold and express protected views without being mistreated as a consequence. It was not the protected views of Mrs Higgs that resulted in the disciplinary action but rather the School’s conclusion that her action in posting the items in question might reasonably (and in fact did) lead others to conclude that she held wholly unacceptable views. 72. It follows that we also conclude that the causal nexus between the protected characteristic and the actions of the school was not made out. The School’s behaviour was not related to the relevant beliefs and it followed that the claim of harassment was not made out.”
“(1) The ET erred in law in failing to consider proportionality of the Respondent’s interference with the Appellant’s manifestation of her religious/philosophical beliefs. (2) The ET erred in law in failing to consider whether the interference with the Claimant’s Convention rights was ‘prescribed by law’. (3) The ET erred in law in holding that the employer could lawfully restrict the Appellants right to freedom of speech to the language of an ET pleading: see (ET 30 and 62). (4) The ET reached an impermissible conclusion and/or failed to properly explain its reasons for attributing Mr Conlan’s reasons to all other decision-makers; alternatively, misdirected itself in identification of the relevant decision-makers. (5) The ET erred in law in finding that the Respondent did not discriminate against the Claimant when it investigated and/or dismissed her by reason of the complainant’s objection to the Claimant’s beliefs. (6) The ET erred in law in finding that it was reasonable for third parties reading the Claimant’s posts to conclude that she was homophobic or transphobic. Alternatively, that finding is perverse. (7) The ET’s finding that the reason for dismissal was (or was solely) because of the views of third parties about the posts rather than the School’s own views about those posts (ET 60, 61) results from the following errors of law: (a) an employer cannot escape liability by pointing to pressure from a third party whose own motivation was discriminatory (Din v Carrington Viyella); (b) stereotyping a protected characteristic is a discriminatory reason (Aylott[2010] ICR 1278 ); (c) alternatively, this finding is perverse.”
“81. Returning then to the ET’s finding as to the reason for the respondent’s actions in this case, it stated that it considered that this was not because of, or related to, the claimant’s actual beliefs but because of the concern that her posts might be seen as evidence that she held other beliefs, which might be described as ‘homophobic’ or ‘transphobic’. Putting to one side the dangers that can arise from the use of labels that might mean different things to different people (see the discussion at paragraph 250 R (oao Miller) v College of Policing and anor[2020] EWHC 225 (Admin) , and the observations of Underhill LJ at paragraph 18 Page v NHS Trust Development Authority[2021] EWCA Civ 255 ), the difficulty with the ET’s analysis is that it did not engage with the question whether this was, nonetheless, because of, or related to, the claimant’s manifestation of her beliefs. In answering that question, the views or concerns of the respondent were not relevant (Page, paragraph 49); applying the test laid down at paragraph 82 Eweida v UK(2013) 57 EHRR 8 , the ET needed to consider whether there was a sufficiently close or direct nexus between the claimant’s protected beliefs and her posts (relied on by her as amounting to a manifestation of those beliefs). 82. To the extent that the ET addressed the question identified in Eweida, it is apparent that it did so through the prism of the respondent’s view of the claimant’s posts. The respondent’s views were relevant when determining whether there had in fact been any interference with the claimant’s right to manifest her beliefs and to freedom of expression - whether its treatment of her was because of, or related to, her exercise of those rights - but could not be determinative of the prior question, whether there was a sufficiently close or direct link between the claimant’s posts and her beliefs such as to mean that those posts were to be viewed as a manifestation of her beliefs. If they were, then the ET needed to determine the ‘reason why’ question by asking itself whether this was because of, or related to, that manifestation of belief (prohibited under the EqA), or whether it was in fact because the claimant had manifested her belief in a way to which objection could justifiably be taken. As was made clear in Page (see paragraph 68), in the latter case, it is the objectionable manifestation of the belief that is treated as the reason for the act complained of. In order to determine whether or not the manifestation can properly be said to be ‘objectionable’, however, it is necessary to carry out a proportionality assessment: keeping in mind the need to interpret the EqA consistently with the ECHR, there can be nothing objectionable about a manifestation of a belief, or free expression of that belief, that would not justify its limitation or restriction under articles 9(2) or 10(2) ECHR (and see Page at paragraph 74; Wasteney v East London NHS Foundation Trust[2016] ICR 643 at paragraph 55). 83. As the respondent acknowledged in its oral submissions, the ET’s reasoning demonstrates that, had it properly engaged with the Eweida question, it would have concluded that there was a close or direct nexus between the claimant’s Facebook posts and the beliefs that she had relied on in her claims: as it stated, ‘The posts in question clearly expressed those beliefs’ (ET, paragraph 70). That did not mean that it was bound to find that the respondent’s actions necessarily amounted to direct discrimination or harassment, but, in determining the reason for the treatment complained of, the ET needed to assess whether those actions were prescribed by law, and were necessary for the protection of the rights and freedoms of others. And, in carrying out that assessment, the ET needed to first recognise the essential nature of the claimant’s right to freedom of belief and to the freedom to express that belief (a recognition that must carry with it an understanding of the foundational nature of those rights for any democracy; see Sahin v Turkey(2007) 44 EHRR 5 and Handyside v UK 1 EHRR 737), before undertaking the proportionality assessment laid down in Bank Mellat v HM Treasury (No 2)[2014] AC 700 (see paragraph 54 above). 84. The problem with the ET’s approach is that it by-passed any engagement with the nature of the claimant’s rights, and failed to carry out the requisite balancing exercise, when seeking to determine whether the mental processes which caused the respondent to act did not involve the claimant’s beliefs but only their objectionable manifestation. As the claimant objects (ground 1 of the appeal), the ET’s approach meant that it impermissibly narrowed the task it had to undertake. It was not enough to find that the respondent had been motivated by a concern that the claimant could be perceived to hold ‘wholly unacceptable views’ (ET, paragraph 70); the ET needed to consider whether that motivation or concern had arisen out of the claimant’s manifestation of her beliefs (accepted to be protected under the EqA) or by a justified objection to that manifestation.”
“While, therefore, the appeal should be allowed, this is not a case where it can properly be said that only one outcome is possible, and the appropriate disposal must be for this matter to be remitted for determination (Jafri v Lincoln College[2014] EWCA Civ 449 ). That remission should be on the basis that it has already been found that the Facebook posts in issue had a sufficiently close or direct nexus with the beliefs relied on by the claimant in these proceedings such as to amount to a manifestation of those beliefs (per Eweida). It will, however, be for the ET on the remitted hearing to determine, recognising the essential nature of the claimant’s rights to freedom of belief and freedom of expression: (1) whether the measures adopted by the respondent were prescribed by law; and, if so, (2) whether those measures were necessary in pursuit of the protection of the rights, freedoms or reputation of others. Undertaking that analysis will enable the ET to determine whether the respondent’s actions were because of, or related to, the manifestation of the claimant’s protected beliefs, or were in fact due to a justified objection to the manner of that manifestation, in respect of which there was a clear legal basis for the claimant’s rights to freedom of belief and expression to be limited to the extent necessary for the legitimate protection of the rights of others.”
“The appeal be allowed and this matter remitted (in accordance with the reasons provided in the Judgment handed down this day) for the determination of the question whether the respondent’s actions were because of, or related to, the manifestation of the claimant’s protected beliefs, or were due to a justified objection to the manner of that manifestation, in respect of which there was a clear legal basis for the claimant’s rights to freedom of belief and expression to be limited to the extent necessary for the legitimate protection of the rights of others.”
“93. For my part, I consider that a danger can arise from any attempt to lay down general guidelines in cases such as this. Experience suggests that issues arising from the exercise of rights to freedom of religion and belief, and to freedom of expression, are invariably fact-specific. Although the public debate around these issues tends to be conducted through the prism of categories and labels, that is not an approach that can properly inform the decisions taken in individual cases. The values that underpin the right to freedom of religion and belief and of freedom of expression – pluralism, tolerance and broadmindedness (per Sahin v Turkey(2007) 44 EHRR 5 ; Handyside v UK 1 EHRR 737) – require nuanced decision-making; there is no ‘one size fits all’ approach. 94. All that said, I can see that, within the employment context, it may be helpful for there to be at least be some mutual understanding of the basic principles that will underpin the approach adopted when assessing the proportionality of any interference with rights to freedom of religion and belief and of freedom of expression. (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 context-specific. 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 Archbishops’ Council] 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.”
“GROUND 1: On the factual findings of the ET, supplemented by undisputed and indisputable facts of this case, the EAT was bound to conclude that the Respondent’s interference with the Appellant’s rights cannot be justified under Article 9(2) or 10(2), because: (a) The interference was not ‘prescribed by law’; (b) The interference was not justified by protecting the Respondent’s reputation; (c) The interference was not justified by the protection of rights and freedoms of others. There is no right not to be offended, and the offence taken by the audience (‘heckler’s veto’) can never justify interference with Convention rights. (d) The interference was not proportionate; and/or (e) The interference could not be justified as necessary in a democratic society in the light of the essential principle of pluralism which underpins the Convention. GROUND 2: The EAT has failed to direct itself, or to provide guidance to the ET on remission, on the principle that the Convention protects not only the substance of a manifestation/expression, but likewise the language and manner. GROUND 3: The EAT has failed to address Grounds 5-7 of the Grounds of Appeal before it. Had it done so, it was bound to conclude, on the unchallenged factual findings of the ET supplemented by undisputed and indisputable facts of this case: (a) that the complainant was guilty of unlawful stereotyping and therefore of discrimination (b) Respondent adopted the discriminatory views of that third party and was thus had been [sic] guilty of direct discrimination. GROUND 4: EAT has erred in failing to uphold Ground 4 of the Appellant’s appeal: The ET reached an impermissible conclusion and/or failed to properly explain its reasons for attributing Mr Conlan’s reasons to all other decision-makers; alternatively, misdirected itself in the identification of the relevant decision-makers.”
“The Respondent accepts that the EAT was entitled to uphold the appeal and remit to the same employment tribunal to reconsider the effect (if any) of the Facebook posts as constituting a manifestation of a protected belief. It challenges, however, the importation of a Convention-based proportionality assessment - including a gateway criterion that the impugned conduct must be ‘prescribed by law’ - into s13 EqA 2010. The Respondent’s Grounds are set out in the Answer to Claimants Appeal and Notice of Cross-Appeal.”
“An ET should apply heightened scrutiny where the decision-maker asserts that the reason for detrimental treatment is not the protected characteristic but a feature separable from it. A similar approach is taken to separability in victimisation or whistleblowing complaints. R accepts that the ET’s enquiry at first instance is not sufficiently reasoned and consents to remission accordingly. That heightened enquiry, however, is confined to those matters known to and operative upon the mind of the decision-maker. It is subject to neither a ‘prescribed by law’ test nor a proportionality exercise. Both the EAT’s terms of remission and Ground One are thus founded on errors of law.”
“As the Court has stated on many occasions, freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to para. 2 of Art. 10, it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. As para. 2 of Art. 10 recognises, however, the exercise of that freedom carries with it duties and responsibilities. Amongst them – in the context of religious opinions and beliefs – may legitimately be included an obligation to avoid as far as possible expressions that are gratuitously offensive to others and thus an infringement of their rights, and which therefore do not contribute to any form of public debate capable of furthering progress in human affairs.”
“Into this second category, the Court has not only put speech which explicitly calls for violence or other criminal acts, but has held that attacks on persons committed by insulting, holding up to ridicule or slandering specific groups of the population can be sufficient for allowing the authorities to favour combating prejudicial speech within the context of permitted restrictions on freedom of expression (see Beizaras and Levickas v. Lithuania, … §125; Vejdeland and Others v. Sweden, … §55, and Féret v. Belgium, … §73). In cases concerning speech which does not call for violence or other criminal acts, but which the Court has nevertheless considered to constitute ‘hate speech’, that conclusion has been based on an assessment of the content of the expression and the manner of its delivery.”
“On the assumption that Mr Smith was not (as I have found) reasonably to be taken as seeking to express the Trust’s own views, I cannot envisage how his moderate expression of his particular views about gay marriage in church, on his personal Facebook wall at a weekend out of working hours, could sensibly lead any reasonable reader to think the worst of the Trust for having employed him as a manager.”
“I know that there are transgenders and gays who do have the same beliefs as me. … I am not against gay people, it doesn’t say that.”
“The mere expression of views on theological grounds (e.g. that ‘homosexuality is a sin’) does not necessarily connote that the person expressing such views will discriminate on such grounds. In the present case, there was positive evidence to suggest that the Appellant had never discriminated on such grounds in the past and was not likely to do so in the future (because, as he explained, the Bible prohibited him from discriminating against anybody).”
“Where the objection is based on the words used by the employee, it is arguable that the defence should only be available if objectively, the employer can legitimately complain about the meaning of those words, and that it should not be available because of the reaction to those words of a person which derives, not from the objective meaning of the words, but from subjective inferences some people might draw, or which the complainant has drawn, from those words.”
“50. … One particular species of [direct discrimination] in which an employee’s holding or manifesting their belief might have a significant influence on their treatment is through the putative discriminator’s adoption of a stereotype. In such a case, although the reason for the treatment given by the employer is not the protected characteristic, it is nonetheless positively relied on by the claimant. The claimant argues that the decision-maker has, consciously or unconsciously, adopted a stereotype and was significantly influenced by it in deciding on the treatment complained of i.e. on the basis that the claimant would share the perceived attributes of the group, rather than relying on evidence about the particular individual. If that is so then the treatment will be ‘because of’ the protected characteristic. It does not matter if the stereotype is very likely to be true: see e.g. R (European Roma Rights Centre) v Immigration Officer at Prague Airport …[2005] 2 AC 1 per Lady Hale at §82; Commerzbank AG v RajputUKEAT/154/18 [2019] ICR 1613 … at §77 per Soole J. 51. … 52. In relation to religion or belief, a decision-maker will accordingly discriminate where the reason given for the treatment is significantly influenced, consciously or unconsciously, by a stereotype that persons who hold or manifest the relevant belief will share attributes of a group which they might not in fact possess. Examples of stereotypes in relation to religion or belief explicitly recognised in the case law are that: persons who hold/manifest certain gender-critical beliefs have animus towards trans persons (see e.g. R (Miller) v College of Policing[2020] EWHC 225 (Admin) [2020] 4 All ER 31 at §§250, 281); or that persons holding/manifesting the belief that same-sex sexual activity is sinful have animus towards gay persons (see e.g. Ngole at §115). It may be that some persons who hold/manifest such beliefs have such animus, but it is stereotyping to assume that all do. Given the above cases, the EHRC considers that a Tribunal is likely to be able to proceed on the basis that the stereotypes which they identify exist (Commerzbank, §§79-80), although it may need to give prior notice to the parties of a proposed use of the principle: ibid., §84. 53. The stereotype must significantly influence the decision-maker’s decision. That is irrespective of whether, as in a case such as the present, the employer is acting following a third-party objection/complaint about the claimant.”