Religion or Belief Discrimination

The case concerned a Christian Claimant who was a secondary school counsellor. She was dismissed for gross misconduct following Facebook posts she had made criticising relationship education in primary schools.

Her criticism focused on transgender issues. She claimed that her dismissal was discriminatory on grounds of her religious belief – both a lack of belief that someone could change their biological sex, and a belief that marriage is an institution between a man and a woman.

The Court of Appeal found in favour of the Claimant.

Lord Justice Underhill set out a summary of his reasoning at paragraph 175 of the decision:

1. 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.
2. 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 dismissal was a proportionate response to the objectionable feature – in short, that it was objectively justified. 
3. 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.
4. 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.
5. 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 in circumstances where she had not said anything of the kind at work or displayed any discriminatory attitudes in her treatment of pupils.