It's Not What You Said, It's The Way That You Said It: Manifesting Protected Beliefs in the Workplace Following Higgs v Farmor's School

Abstract

The Court of Appeal in Higgs v Farmor's School has provided a detailed analysis of the relationship between anti-discrimination and human rights standards in the workplace where employees manifest protected beliefs. Unfortunately, this analysis suffers from a central flaw by presuming that if manifestation of belief is protected under direct discrimination, it will always be unlawful for an employer to interfere. It is this presumption which prompted the Court of Appeal to defend the introduction of a justification test into what was previously a factual analysis of causation, by deeming less favourable treatment in response to 'objectionable' manifestations to have not been 'because of' the protected belief itself. This paper argues that such an approach is unnecessary because it responds to a problem which does not exist. It is simply incorrect to presume that protection from direct discrimination necessarily implies that any interference with the manifestation of a protected belief is directly discriminatory. Where interference is neutral as between protected beliefs, interference falls to be considered under indirect discrimination analysis, where a justification test is readily available. It is only where an employer targets particular beliefs that interference with manifestation falls to be considered under direct discrimination. For example, a policy prohibiting the wearing of jewellery at work can only be analysed as indirect discrimination, whereas a policy specifically targeting christian jewellery would be directly discriminatory. Where a particular religion or belief is targeted in this manner, no justification test is needed because the very thing that renders this treatment directly discriminatory also renders the interference disproportionate. Therefore, the paper concludes that the ordinary application of the Equality Act is already coextensive with the protections afforded under the European Convention on Human Rights. Any interpretation needed under s.3 of the Human Rights Act is needed within the sphere of indirect discrimination, not direct discrimination. 

Keywords: employment law, discrimination, religion, philosophical belief, human rights law