Executive Summary

This case concerned the appeal of an employee who had been dismissed from her employment at a school for posts she made on her Facebook profile. One post opposed the teaching that gender is fluid and not binary. The other post contended that same-sex marriage cannot be equated with traditional marriage between a man and a woman. Neither post was directed to anyone from the claimant’s employment.

A complaint was made by a parent of the school in that these posts contained “homophobic and prejudiced views”. Upon an internal review, the claimant was suspended and ultimately dismissed.

The claimant made a claim to the Employment Tribunal (ET) for direct discrimination and harassment under ss 13 & 26 of the Equality Act 2010 (EqA) on the grounds of religion and belief. However, it was dismissed. She then appealed to the Employment Appeal Tribunal (EAT), which granted the appeal but made no findings and instead remitted the case back to the ET. The claim arrived at the Court of Appeal (CoA) because the claimant took issue with the EAT’s decision to remit rather than rule on the claim as a whole in her favour.

The CoA granted the appeal against the EAT’s decision and found that although the EAT was well placed to rule on the point of law, they were not wrong to remit the claim. However, in the instance of this appeal, the CoA ruled and held that the Claimant’s dismissal constituted unlawful discrimination on the ground of religion or belief. [169]

Helpfully, Lord Justice Underhill summarises his essential conclusions, which I reproduce below. [175]

• The dismissal of an employee merely because they have expressed a religious or other protected belief to which the employer, or a third party with whom it wishes to protect its reputation, objects will constitute unlawful direct discrimination within the meaning of the Equality Act.
• However, if the dismissal is motivated not simply by the expression of the belief itself (or third parties’ reaction to it) but by something objectionable in the way in which it was expressed, determined objectively, then the effect of the decision in Page v NHS Trust Development Authority is that the dismissal will be lawful if, but only if, the employer shows that it was a proportionate response to the objectionable feature – in short, that it was objectively justified: see para. 74 above.
• Although point (2) modifies the usual approach under the Equality Act so as to conform with that required by the European Convention of Human Rights, that “blending” is jurisprudentially legitimate: see paras. 81-97.
• In the present case the Claimant, who was employed in a secondary school, had posted messages, mostly quoted from other sources, objecting to Government policy on sex education in primary schools because of its promotion of “gender fluidity” and its equation of same-sex marriage with marriage between a man and a woman. It was not in dispute, following the earlier decision of the EAT in Forstater v GCD Europe, that the Claimant’s beliefs that gender is binary and that same-sex marriage cannot be equated with marriage between a man and a woman are protected by the Equality Act.
• The school sought to justify her dismissal on the basis that the posts in question were intemperately expressed and included insulting references to the promoters of gender fluidity and “the LGBT crowd” which were liable to damage the school’s reputation in the community: the posts had been reported by one parent and might be seen by others. However, neither the language of the posts nor the risk of reputational damage were capable of justifying the Claimant’s dismissal.

Grounds of Appeal – at the Court of Appeal

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:

• The interference was not ‘prescribed by law’;
• The interference was not justified by protecting the Respondent’s reputation;
• 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.
• The interference was not proportionate; and/or
• 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:

• That the complainant was guilty of unlawful stereotyping and therefore of discrimination.
• 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.

Partial ruling on grounds of appeal

It is noteworthy that Underhill LJ ruled on grounds 1 & 2, considering it unnecessary to rule on grounds 3 & 4, as they would not affect the outcome of the appeal and there was no advantage in wrestling with an issue that was far from straightforward. [171]

Ruling on remittal to the ET

The claimant appealed to the CoA on the basis that the claim should not have been remitted to the ET because “the EAT was bound in law to reach its own conclusion and allow the Claimant’s claim for direct discrimination”. On this procedural point Underhill LJ explains that, per his judgment in Jafri v Lincoln College [2014] EWCA Civ 449, [2015] QB 781 “If, once the ET’s error of law is corrected, more than one outcome is possible, the authorities are clear that it must be left to the ET to decide what that outcome should be, however well-placed the EAT may be to take the decision itself.” Underhill LJ expressed dissatisfaction with this precedent and indicated it could only be the Supreme Court that could reconsider this.

The Law and Discussion

The central themes the CoA dealt with were whether the claimant’s manifestation of her beliefs were protected beliefs under the EqA, secondly, whether the respondent’s decision to dismiss the claimant was objectively justifiable.

Protected belief and manifestation

The CoA held that following Forstater v GCD Europe UKEAT/0105/20 [2022] ICR 1, that the Claimant’s beliefs that gender is binary, and that same-sex marriage cannot be equated with marriage between a man and a woman are protected by the EqA.

The CoA was careful to clarify that despite the fact that the EqA gives employees a right not to be discriminated against on the ground of manifesting a belief, it does not mean that that right is unqualified. [56]

Objective justification and free-speech

The CoA then turned to considering whether the respondent’s actions to dismiss the claimant were objectively justifiable. Underhill LJ reflected on his judgment of Page v NHS Trust Development Authority [2021] EWCA Civ 255 which bears significant factual similarities to the present appeal. In this case, the claimant was dismissed from his employment because he expressed controversial views derived from his Christian beliefs during media interviews.

Underhill LJ expanded on the decision and gave a helpful explanation behind the objective justification test in that an employer’s dismissal in response to an employee’s manifestation of their belief was not to be treated as having occurred “because of” that manifestation if it constituted an objectively justifiable response to something “objectionable” in the way in which the belief was manifested. [74]

Therefore, in applying Underhill LJ’s Objective Justification to the appeal, he expressed that “In my opinion the ET would be bound to find that the Claimant’s dismissal was not objectively justified and accordingly that it constituted unlawful discrimination.” [157]

Underhill LJ explains his reasons at paragraphs 159 – 163. However, in summary, the posts themselves were considered not to be grossly offensive such as those found in the case of Lilliendahl v Iceland, 29297/18 [2020] ECHR 931. In particular, they did not appear to be primarily intended to incite hatred or disgust for homosexuals or trans people and would therefore not pass the threshold of objectionability. Further to this, the words were not the claimant’s own and she disagreed with the language used. Which of course did not excuse her but went to the point of culpability.

Finally, there was no evidence that the school’s reputation had been damaged. Even if readers of the posts associated the Claimant with the School, there was no indication that she would bring this message into her work—indeed, the court noted that there had been no complaints about her work over the past six years.

Conclusion

Underhill LJ allowed the Claimant’s appeal against the EAT’s decision to remit to the ET the issue of whether her dismissal was unlawfully discriminatory and substituted a finding that she succeeds on that claim. The claimant’s appeal against the decision to remit the remaining elements of her claim was dismissed with the note that Underhill LJ hoped and expected that a decision on those issues would not be necessary.

By Alvaro Loxton

Pupil Barrister