Guest post by Russell Sandberg on an interesting employment case.
The decision in Mrs K Higgs v Farmor’s School  ET 1401264/219 has attracted significant attention in the media. However, its importance in terms of the developing case law on religion or belief discrimination is not about its finding that there was no direct discrimination; it is rather about what it says about the fifth test for the definition of belief.
The claimant had made a number of reposts on Facebook concerning the teaching in schools on same-sex marriage and about gender fluidity with her commenting on the post that ‘they are brainwashing our children’. In response to an e-mail complaint to the school from an outsider, the claimant was suspended from her role as pastoral administrator and work experience manager at the school. Following a disciplinary hearing, she was dismissed on grounds of gross misconduct. The claimant subsequently presented her claim to the Employment Tribunal alleging that she had been discriminated against on grounds of religion and had not been harassed. The Employment Tribunal dismissed the claim.
Although the claimant is a Christian, her contention was not that she had been discriminated against or harassed for her Christianity per se, but rather due to, inter alia, her lack of belief in ‘gender fluidity’, belief in marriage as a lifelong union between one man and one woman and lack of belief in same-sex marriage, seeing the legalisation of same-sex marriage as being contrary to Biblical teaching.
The Employment Tribunal applied the usual Grainger PLC v Nicholson  UKEAT 0219/09/ZT tests to determine the definition of belief. It was accepted that the first four tests were met but the respondent contended that the final test (‘worth of respect in a democratic society’) had not been met.
The Tribunal was referred to the cases of Forstater v CGD Europe &Ors  ET 2200909/2019 and Mackereth v The Department for Work and Pensions & Ors  ET 1304602/2018. In these decisions, it was established that the balancing of competing rights is a consideration under this test and that a belief that leads the claimant not to respect the law would fail under the fifth test. These were the first cases where claims had failed because of the fifth test.
In Mackereth, a lack of belief in transgenderism and a belief that it would be irresponsible and dishonest for (say) a health professional to accommodate and/or encourage a patient’s impersonation of the opposite sex were all held to be ‘incompatible with human dignity and conflict with the fundamental rights of others, specifically here, transgender individuals’. Similarly in Forstater Employment Judge Tayler concluded that the ‘claimant’s view, in its absolutist nature, is incompatible with human dignity and fundamental rights of others’ since it denied ‘the right of a person with a Gender Recognition Certificate to be the sex to which they have transitioned’.
In Higgs v Farmor’s School, the Tribunal noted that these decisions were not binding on it. If the only way a person could manifest a particular belief was by acting unlawfully then that would not meet the fifth test. However, “the fact that an individual might choose to manifest his or her belief by acting unlawfully is not determinative of such inevitability” .
The Tribunal held that there was no reason why the claimant’s belief should necessarily result in unlawful action by her. Her beliefs might upset certain people but if Articles 9 and 10 ‘only extended to expressions of belief that could upset no-one they would be worthless’ . To conclude that such beliefs do not deserve protection ‘as the tribunals did in the cases that we were referred … seemed to us to be a strange and somewhat disturbing conclusion’.
The Tribunal concluded that it is ‘necessary for us to carry out a balancing act between those who hold the beliefs in question and those who oppose them’, considering the ‘mores of society at the present day’  and that the beliefs in question did satisfy the final test in Grainger and did attract the protection of the Equality Act. However, there was no direct discrimination because the respondent’s actions were not on grounds of the claimant’s beliefs. There was also no harassment because ‘the causal nexus between the protected characteristic and the actions of the school was not made out’ .
This decision is therefore potentially important in showing how the fifth test is to be applied and for nuancing the elucidation of the test as it had been expressed in Forstater and Mackereth: the balancing of competing rights is a consideration under this test and a belief that necessarily leads the claimant not to respect the law would fail under the fifth test.