Higgs v Farmor's School: discrimination and manifestation of beliefs

The Court of Appeal has found that the dismissal of an employee for posting messages on a personal Facebook page criticising sex education in schools, particularly the teaching of gender fluidity, amounted to unlawful discrimination on the ground of religion or belief. Dismissal was not a proportionate response in the circumstances.

Facts

Mrs Higgs is a Christian who worked as a pastoral administrator and work experience manager for Farmor's School. She was dismissed for gross misconduct after a parent at the school complained about posts on Mrs Higgs' personal Facebook page which were described as expressing "homophobic and prejudiced views". Mrs Higgs had re-posted posts opposing the teaching in schools of gender fluidity and that same-sex marriage is equivalent to marriage between a man and a woman. 

Tribunal and EAT decisions

Mrs Higgs raised claims of direct discrimination and harassment on the ground of religion or belief, including her lack of belief in gender fluidity and lack of belief in same-sex marriage.

The employment tribunal accepted that these beliefs were protected under the Equality Act 2010 but dismissed her claims. It found that she had been dismissed not because of these protected beliefs but because her Facebook posts suggested that she held homophobic and transphobic beliefs, which are not protected. On appeal the Employment Appeal Tribunal (EAT) found that the tribunal should have considered whether there was a sufficiently close connection between her protected beliefs and the Facebook posts. The case was sent back to be determined by a new tribunal but Mrs Higgs appealed to the Court of Appeal.

Court of Appeal decision

The Court of Appeal allowed the appeal, finding that Mrs Higgs' dismissal was not objectively justified and so amounted to unlawful discrimination on the ground of religion or belief.

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. However, if the way in which the belief was expressed is objectionable then the dismissal will be lawful if the employer can shown that it was objectively justified – in other words that it was a proportionate response. In reaching this decision the Court of Appeal has imported an objective justification type defence into direct discrimination claims based on religion or belief.

Relevant factors when assessing proportionality

The Court of Appeal, while recognising that there can be no one-size-fits-all approach, considered the factors set out by the EAT as being potentially relevant when assessing the proportionality of an interference with the right to manifest a protected belief, namely:

• The content, extent, tone and language used
• The worker's understanding of the likely audience - for example whether the views were expressed at work or on personal social media
• Whether it amounts to discriminatory harassment of others
• The extent and nature of intrusion on the rights of others
• The nature of the business (including any potential impact on vulnerable service users or clients)
• Any impact on the ability to run the business and any potential reputational risk
• Whether the worker has made it clear that any views expressed are personal
• Any power imbalance between the worker and those who might be impacted.

Reasons why dismissal was disproportionate

Although the school was entitled to object to the posts, given the offensive language and the fact that sex education in schools was relevant to Mrs Higgs' work, the Court of Appeal found the dismissal to be "unquestionably a disproportionate response" because:

• The language of the re-posts, although objectionable, was not grossly offensive. The posts did not appear to be primarily intended to incite hatred for gay or trans people.
• The language of the re-posts was not Mrs Higgs' own (except her repetition of the word 'brainwashing'). She made it clear to the school that she was endorsing the content of the messages rather than their language.
• There was no evidence that the reputation of the school had been damaged. The posts were made on a personal Facebook account, in her maiden name and with no reference to the school. By the time of the disciplinary hearing, only one person was known to have recognised who she was.
• The school was concerned about potential damage in the future but this risk was found to be slight, the school having accepted that there was no possibility that readers of the posts would believe that they represented the school’s views.
• There was no reason to suppose that Mrs Higgs, who was a long-serving employee about whose work there had been no complaint, had expressed her views at work or that they would lead her to treat gay or trans pupils differently.
• Although Mrs Higgs had failed to remove the offending posts during the disciplinary process, this lack of insight was not a reason to impose a more severe sanction than would otherwise have been justified.

Unlawful stereotyping

Although it was unnecessary to decide on this during the appeal, the Court of Appeal accepted that where an employer relies on unlawful stereotyping, for example that people holding gender critical beliefs are transphobic, the treatment will be because of the protected characteristic. It will therefore amount to direct discrimination and the proportionality test will not apply.

Comment

This is an extremely important case for any employer managing a situation where a worker has manifested a protected belief in what is considered to be an objectionable way.

Whether something is a legitimate expression of religion or belief or an inappropriate statement or action will always depend on the facts. Just because you or others (such as a third party with whom you wish to protect your reputation) object to what has been said or done, or are offended, does not mean you can take action. There must be 'something more'. Where the issue concerns social media use outside of work, the Court of Appeal's decision highlights the difficulties with relying on reputational risk alone. 

If you decide that the way in which a worker has manifested their protected belief is objectionable, any action you take must be a proportionate response in all the circumstances. The outcome of this case may have been different if the school had issued a warning rather than dismissing Mrs Higgs. If you are considering taking particular action, think about whether less intrusive options could be appropriate.

More information

This is a tricky area. If you would like advice on a particular situation please contact a member of Brodies' Employment and Immigration team.

Workbox by Brodies subscribers will find further guidance at the page on Religion or Belief Discrimination. There are also training slides on equality, inclusion and diversity as well as an example policy. To find out more or to arrange a short online demo, please contact the Workbox team.