UK Employment Law Coffee Break: Manifesting beliefs, HR pensions spotlight, and a webinar on Belgian employment law reforms

Dismissal for expressing beliefs was unlawful discrimination where it could not be objectively justified 

The Court of Appeal has handed down an important decision in Higgs v Farmor's School which deals with the difficult tension between free speech and the employment relationship. The ruling confirms that Christian beliefs opposing transgenderism and same-sex marriage are protected under the Equality Act. It has attracted significant media attention and is an area where employers should remain informed.

The claimant was employed by a school as a pastoral administrator and work experience manager. She posted/reposted on social media content (described as being "hyperbolically expressed") which in essence expressed two beliefs; that gender is binary and not "fluid" and that same-sex marriage cannot be equated with traditional marriage between a man and a woman and that accordingly, it is wrong to teach anything different to children. 

A parent at the school complained that the claimant had expressed "homophobic and prejudicial view against the lgbt community" and that she may exert influence over vulnerable children placed in isolation. The claimant was suspended and an investigation took place which led to disciplinary action and ultimately to her dismissal for gross misconduct. 

The claimant brought clams of direct discrimination and harassment on the ground of religion or belief. Her claim was dismissed by the Employment Tribunal which found that her dismissal was not because of her protected beliefs about gender fluidity and same-sex marriage "but because the School feared that the way in which she had expressed those beliefs would be perceived as showing that she had homophobic and transphobic views, whose expression would be unprotected and unacceptable". 

Dismissal was unlawful discrimination on grounds of religion or belief 

The Court of Appeal noted that the beliefs she identified in the tribunal essentially encapsulated the belief that gender is binary and that marriage can only be between men and women which, following the EAT decision in Forstater v GCD Europe, it is "now common ground… fall within the definition of the protected characteristics of 'religion or belief' in the [Equality Act 2010]". 

It went onto conclude that the claimant's dismissal in the circumstances was unlawful discrimination on the grounds of religion or belief. 

In line with existing authorities, the Court of Appeal noted that:

• The dismissal of an employee merely because they have expressed a religious or other protected belief to which the employer, or a third party with whom it wishes to protect its reputation, objects will constitute unlawful direct discrimination within the meaning of the Equality Act.
• If the dismissal is motivated however not simply by the expression of the belief itself (or third parties' reaction to it) but by something objectionable in the way in which it was expressed, determined objectively, then the dismissal will be lawful "if, but only if, the employer shows that it was a proportionate response to the objectionable feature – in short, that it was objectively justified". 

Here, the Court of Appeal noted that the messages the claimant had posted were "mostly quoted from other sources, objecting to Government policy on sex education in primary schools because of its promotion of 'gender fluidity' and its equation of same-sex marriage with marriage between a man and a woman." 

The Court of Appeal noted that the school had sought to justify her dismissal on the basis that the posts in question were "intemperately expressed and included insulting references to the promoters of gender fluidity and the 'LGBT crowd' which were liable to damage the school's reputation in the community; the posts had been reported by one parent and might be seen by others. However, neither the language of the posts nor the risk of reputational damage were capable of justifying the Claimant's dismissal in circumstances where she had not said anything of the kind at work or displayed any discriminatory attitudes in her treatment of pupils". 

What does this mean for employers? 

This decision is in line with existing authorities and highlights the careful assessment that employers will need to undertake when faced with an individual raising objections over beliefs held by another. The Court of Appeal decision emphasises that a dismissal (or other detrimental action, such as disciplinary action) for expressing those beliefs will only be lawful where it is because of the way in which the belief is expressed and the employer's response is one that can be objectively justified. Such cases will necessarily be fact specific – the Court of Appeal stressed that there will be "no one-size-fits-all approach" and there was a need for "nuanced decision-making". 

For example, here the claimant had predominantly reposted/copied messages rather than written the posts in issue herself, there was no evidence of any actual damage to the school's reputation and the risk of widespread circulation, potentially damaging the school's reputation in the future, was "speculative at best" – "the posts were made on [the claimant's] personal Facebook account, in her maiden name and with no reference to the School. By the time of the hearing, several weeks after the posts were made, only one person was known to have recognised who she was". There was no evidence that the claimant would allow her views to influence her work. 

Employers should ensure that managers are trained in handing these situations; it is important that individuals feel able to raise genuine concerns and that these are dealt with sensitively and constructively. Employers should also revisit social media and other related policies to ensure that these set out clearly the employer's expectations as to how social media should be used while in the employment, including the potential damage to the business and the risk of discriminating, bullying or harassing another individual. 

HR pensions spotlight for February: New flexibility to release surplus from DB schemes 

At the end of January, the UK chancellor confirmed that the government intends to introduce "new flexibilities for well-funded Defined Benefit schemes to release surplus funds where it is safe to do so". It will not be clear exactly what changes the government intends to make and on what basis surplus will be measured until it releases its response to the previous administration's consultation on Options for Defined Benefits (DB). The consultation response is expected in the spring. 

For now, a recent press release suggests that "[l]egislative changes could enable all DB schemes to change their rules to permit surplus extraction where there is trustee-employer agreement" and that this will allow "trustees to assess the suite of options available in striking a deal with employers on how best scheme members can also benefit – linked to improving member outcomes." 

The government's hope is that surplus sharing with appropriate safeguards for members could release money back to employers to invest in their business. It also hopes that making it easier to access surplus will give employers an incentive to run on their DB scheme (giving the trustees more scope to consider long-term investments which would support UK growth) instead of securing benefits with an insurer. 

This is also, however, an opportunity for the government to make it easier for employers to share surplus with members and easier for trustees to agree to surplus being released. For example, the original consultation looked at the possibility of changing the pensions tax rules to make it possible to give one-off payments to members, rather than an employer having to commit to permanent increases to benefits. Employers might also want to explore the possibility of using DB surplus to fund contributions to a defined contribution section or scheme. 

The consultation also proposed additional guidance for trustees to give them confidence to share surplus with employers and members where it is safe to do so. A key element here is likely to be how surplus is measured. Will it be buy-out, or low dependency plus a buffer and/or conditions relating to the strength of the employer covenant? We anticipate the Pensions Regulator is feeding into that discussion. 

Employers with DB schemes should look out for the consultation response. 

If you would like to discuss this development or the current options for using DB surplus, please contact Claire Rankin or your usual Osborne Clarke contact. 

Key employment law updates for employers in Belgium 

Our team in Belgium will be hosting a webinar on 25 March, looking at the significant changes for businesses' operations and policies in Belgium, not least in light of the newly formed Belgian federal government. This session will provide the latest information and practical guidance on recent legislative changes that will affect employers and workers in Belgium, including what they can expect from the new government and how to ensure compliance with recent EU directives. 

During this webinar, our experts will cover a range of employment law news, including:

• New Government Plan for 2025-2029: Key changes for employers and what they need to know to stay compliant, such as: return of the trial period; enhanced flexibility in relation to working time, including extension of voluntary overtime scheme, impact on night work and student work; and long-term sick leave: new obligations for employers.
• New Private Investigation Act: Understanding the implications for workplace investigations.
• EU Directive on Transparency Pay: Ensuring pay transparency and its effects on your organisation.
• Extra-contractual liability: the new Belgian Civil Code and the impact on employees.
• Other changes, including: new information obligations for transfers of undertakings, and new statutes of limitation for unpaid salary claims.

This webinar is designed for HR professionals, in-house legal teams, and business leaders who want to stay ahead of the curve in employment law. Our speakers will provide practical insights and answer your questions to help you navigate these changes effectively. If you would like to join us, please register now.