This story, first posted on 1 July 2024, originally stated that the Free Speech Union had been granted permission to intervene in the Court of Appeal in Omooba v Michael Garrett Associates. While FSU applied to the Court to intervene in both Omooba and Higgs v Farmor’s School, we were only granted permission in the latter and should not have stated otherwise. We apologise for any confusion this error caused.
The FSU has been granted permission to intervene in two cases in the Court of Appeal: Higgs v Farmor’s School and Omooba v Michael Garrett Associates Ltd. These two important judgments threw up unresolved questions about a key issue in belief discrimination: when third parties object to an employee who expresses their perfectly lawful beliefs, can it ever be right to dismiss that employee?
In Higgs, the Employment Appeal Tribunal (EAT) made two key rulings.
First, if the third-party objections are themselves discriminatory, then appeasing the objectors by dismissing the employee can itself be an act of discrimination by the employer. We agree with this ruling.
Second, the Tribunal ruled that the employee can be fairly dismissed if: (1) the reason for the dismissal was not the belief itself but the objectionable manner in which it was expressed; and (2) dismissal was a proportionate interference with the employee’s right to freedom of expression. We disagree with this ruling: we believe the law makes no distinction between the belief and the manifestation of that belief, and trying to separate the two is a slippery slope that leads to censorship.
In Omooba v Michael Garrett Associates Ltd – the second case we’re intervening in – the Employment Appeals Tribunal ruled that it can be lawful to dismiss an employee if the reason for doing so is because their expression of a particular belief has upset customers. We think this ruling is wrong, and conflicts with Higgs v Farmor’s School. It would have been plainly discriminatory had the employer appeased customers who objected to Ms Omooba being black, which she is. It must, therefore, also have been discriminatory when they objected to her orthodox Christian beliefs.
Ben Cooper KC and Spencer Keen are acting pro bono as the Free Speech Union’s barristers in both interventions. Our solicitor is Elliot Hammer of Branch Austin McCormick.
The decision to accept our submissions confirms the FSU’s position as the UK’s primary free speech organisation.
To help us to continue fighting important cases like these, please donate to our new legal fighting fund. The link is here.
