Employment Edit: 13 February 2025

Manifesting a protected belief

In a hot-off-the-press judgment, the Court of Appeal has found that the dismissal of an employee after expressing her protected philosophical beliefs in social media posts was unlawful discrimination.

In posts made on her private Facebook account, the claimant (a pastoral administrator and work experience manager in a school) criticised relationship education in schools, including teaching of same sex marriage and gender fluidity. After a parent complained to the school about the posts, the claimant was suspended and later dismissed for gross misconduct. She brought a claim alleging, amongst other things, direct discrimination because of her philosophical beliefs, including her lack of belief in gender fluidity and lack of belief in same sex marriage. The tribunal dismissed her claim, concluding that the reason for the dismissal was not the claimant’s beliefs but rather the school’s concern that someone reading the posts could consider that she held ‘transphobic and homophobic’ views.

After the EAT remitted the case back to the tribunal to reconsider whether dismissal was proportionate, the claimant appealed to the Court of Appeal. In its judgment published yesterday, the Court substituted its own finding that the claimant’s dismissal was a disproportionate response and was unlawful discrimination on the grounds of religion and belief. In reaching that conclusion, the Court noted that the language in the social media posts was not grossly offensive, the majority of the objectionable language was re-posted by the claimant (rather than being written by her), there was no evidence that the reputation of the school had been damaged (the school’s concern was about the potential for future damage) and the school did not believe that the claimant would let her views influence her work. Taking those factors and the claimant’s long service into account, the Court concluded that dismissal was not a proportionate sanction on the facts of this case.

The Court noted that, where the reason for dismissal is something objectionable in the way in which a protected belief was expressed, dismissal will be lawful where the employer can show that it was a proportionate response to the objectionable feature – in brief, the employer must show that dismissal was objectively justified. Importantly, the Court highlighted, as the EAT had before it, that the proportionality principles in cases of this type ‘require nuanced decision-making’ and ‘there can be no one-size-fits-all approach’. These comments from the Court reinforce the highly fact-sensitive nature of cases of this type, in what is a complex and evolving area of law.

(Higgs v Farmor’s School and another)

Neurodiversity at work

In the last fortnight, there have been two updates on the topic of neurodiversity at work:

• Acas has published new guidance for employers to raise awareness of neurodiversity at work. The advice, which can be found here, provides employers with guidance on different types of neurodivergence, how the Equality Act may apply to neurodivergent employees and examples of support for neurodivergent employees.
• The government announced the launch of a new independent panel of experts to advise the government on improving employment experiences and job chances for neurodiverse people. The government has said that the panel, which will be made up of academics with specialisms in neurodiversity, will put together recommendations this summer. You can read more about the panel in the government’s press release here.

Protection against blacklisting

In a recent decision, the Court of Appeal held that it is unlawful to blacklist an employee for taking part in industrial action organised or endorsed by a trade union.

It is unlawful to create or use a list of those who have taken part in, or are taking part in, the ‘activities of trade unions’ where the intention is that the list will be used to treat those people less favourably – this prohibited practice is commonly known as ‘blacklisting’. A key question that the Court of Appeal had to consider in this case was whether ‘activities of trade unions’ for these purposes included industrial action. It concluded that it did – it is therefore unlawful to compile or use a list of employees who are taking part in, or have taken part in, industrial action (including strike action) with a view to discriminating against them.

The Court also found that the protection against blacklisting covers all official industrial action, regardless of whether the trade union qualifies for immunity from liability in relation to the industrial action (also known as ‘protected’ industrial action). Official industrial action is action which has been organised or endorsed by a trade union.

(Morais & others v Ryanair DAC & another)