Kristie Higgs, a school pastoral assistant, was dismissed for gross misconduct after a complaint was raised about personal Facebook posts expressing gender-critical beliefs and views critical of sex and relationship education. Higgs claimed that this was discriminatory because it related to protected beliefs (variously framed as religious beliefs and gender critical beliefs). Her claim was eventually heard by the Court of Appeal (the Court).  Although the case raises many important issues related to the relationship between freedom of speech and freedom of belief, and employers’ reputation rights, this note focuses on its significance for our understanding of direct discrimination.

The case was brought under the Equality Act 2010 but the Court noted that religion and belief is also protected by Article 9 of the European Convention on Human Rights (ECHR) and that under s 3 Human Rights Act 1998 (HRA), the Equality Act should be interpreted to comply with the ECHR. Article 9 protects both the absolute right to belief as well as the qualified right to manifest, subject to limitations that are necessary for the protection inter alia of the rights and freedoms of others (Eweida v UK).

Relying on s 3 HRA the Court included manifestation of religion and belief within the definition of religion and belief, rather than viewing religion and belief and its manifestation separately, as per Article 9(2). This has the result that less favourable treatment for manifesting religion or belief must result in direct discrimination. However, the Court also recognised that there is a need, under Article 9(2), for restrictions on manifestations of belief to be subject to justification where proportionate. This created a difficulty as direct discrimination cannot generally be justified. The Court’s solution was to introduce an element of justification at the definitional stage. if the manifestation was suitable for protection under Article 9(2), then any less favourable treatment based on the manifestation would be directly discriminatory; alternatively if it was proportionate to restrict the manifestation of belief then it would not be a protected manifestation and the less favourable treatment would be lawful.

The need to provide a route for justification was clear: the manifestation in question had the potential to interfere with the rights of others. However the method used (the introduction of justification into direct discrimination)  was unnecessary. A much simpler solution is available.

Under domestic (Azmi v Kirkless and EU law (Bougnaoui and Achbita) manifestation of religion or belief is not included in the definition of religion and belief itself. Instead, it is protected through indirect discrimination: restrictions on the manifestation of belief can adversely impact those with a religion or belief and so need to be justified as a proportionate means of achieving a legitimate aim. This provides a close fit with the protection under Article 9(2): manifestations of religion are not granted absolute protection, but are protected to the extent that they can be justified as proportionate to a legitimate aim. The requirement in s 3 HRA that the Equality Act should be interpreted to comply with Article 9(2) is met by considering the human rights aspects of such cases as part of the determination of whether any limitation on religious freedom is justified.

Using indirect discrimination creates ample space for a nuanced and fact sensitive analysis of the many wider issues raised by the case. It allows for the issues identified by the EAT (such as the content of the manifestation; the tone used; whether the limitation imposed is the least intrusive measure open to the employer etc) to be fully considered as part of the proportionality analysis.

The reasons given by the Court for moving away from the simpler and established indirect discrimination approach are based on some surprising assertions, found in the discussion of the background law. For example, the Court was concerned that employers must be able to restrict religious dress when there are good reasons to do so, such as health and safety. This is of course true, but the law already allows just such justifications in indirect discrimination law.

A second example is found in the discussion of whether restrictions on the manifestations of religion can be framed as potentially indirectly discriminatory. The example is given of an employee being disciplined for Christian proselytisation and it is asserted that a requirement not to proselytise could not be neutral, but would directly discriminate against Christians. However proselytism is not unique to Christianity. A rule could be framed neutrally, restricting employees’ freedom to persuade others to share their beliefs at work, a rule that would be indirectly discriminatory unless justified by an employer. The Court’s related concern that there may be no express rule to this effect need not be problematic: absence of an existing neutrality policy did not prevent the CJEU allowing such a policy in Achbita.

If there were no other option available to the Court to protect the rights of others, then the introduction of justification to direct discrimination might be understandable. However, this was not the case. A simpler alternative is available which allows for fact sensitive analysis of the proportionality of limiting the manifestation of belief. Given the benefits of maintaining the clarity of the law on direct discrimination, the failure of the Court to explain adequately why it was departing from the settled law is disappointing. Instead, the Court has created a complex and elaborate exception to the general rule that direct discrimination cannot be justified. It is to be hoped that this does not lead to a reduction of protection for direct discrimination more generally.