During 2024, there were a number of high-profile Employment Tribunal cases arising from employees expressing their beliefs inside and outside of the workplace. They included claims by Roz Adams (found to be constructively dismissed by Edinburgh Rape Crisis over her concerns about its trans inclusion policy), Professor David Miller (found to be discriminated against due to his anti-Zionist views) and Professor Jo Phoenix, who won her claim for harassment and discrimination on the basis of her gender-critical views. It's not surprising that issues which are hotly contested online and in the media also cause feelings to run high in the workplace. Employers have a difficult line to tread if they want to minimise workplace conflict without risking claims.
The case of Higgs v Farmor offered some guidance for employers as to when it may be justified to take action against an employee for expressing contentious views. Essentially, employers need to undertake a multi-step analysis of whether such action would be proportionate, including whether the expression of the belief is objectionable and whether action is necessary to protect the rights of others. This is how the Employment Appeal Tribunal sought to reconcile discrimination law under the Equality Act 2010 with European human rights law based on the ECHR.
However, the EAT's guidance in Higgs has been criticised as being hard to apply in practice and inconsistent with the Equality Act. The Court of Appeal heard the employee's appeal against the decision in October 2024 and judgment is expected some time in 2025. Sex Matters, the Equality and Human Rights Commission, the Church of England Archbishops’ Council, the Free Speech Union and the Association of Christian Teachers all intervened in the case and made submissions, highlighting its importance.
Whatever the outcome, it will be essential reading for employers grappling with this complex and controversial area of the law.
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