The Employment Appeal Tribunal considered an appeal concerning the connection between an employee's protected beliefs and the respondent's decision to dismiss her. The claimant was employed as a pastoral administrator and work experience manager at the respondent school. She was suspended and, following an investigation, dismissed following complaints relating to Facebook posts that she had made regarding relationships education in primary schools. The claimant brought a claim for direct discrimination because of, or harassment related to, her protected beliefs. The employment tribunal dismissed her claim, finding that the dismissal was not because of, or related to, the claimant's protected beliefs but was due to concerns that somebody reading the claimant's posts could reasonably consider that she held homophobic or transphobic views. The claimant appealed to the EAT.
Following the European Court of Human Rights' decision in Eweida v United Kingdom [2013] ECHR 37, the EAT found that the tribunal should have considered whether the conduct complained of involved any limitation on the claimant's rights under Article 9 European Convention on Human Rights, which first required an assessment of whether the actions of the claimant (ie the actions that caused the response complained of) amounted to a manifestation of religion or belief. Had the tribunal carried out this analysis, the EAT considered that it would have concluded that there was a close or direct nexus between the claimant's Facebook posts and her protected beliefs. It would then have been required to undertake a proportionality assessment 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. This assessment would have involved asking the questions identified in Bank Mellat v Her Majesty's Treasury (No. 2) [2013] UKSC 39, namely: (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.
In this case, the tribunal's finding that the respondent had dismissed the claimant as her posts might reasonably "lead others to conclude that she held wholly unacceptable views", was insufficient as it did not examine whether this was a manifestation of the claimant's belief, and whether the respondent's actions were a justified objection to this manifestation. The matter was therefore remitted to the tribunal to re-consider the "reason why" question in the light of the guidance provided in the EAT's judgment.
For further information on religious beliefs, see Discrimination/Religion and belief.
