Earlier this week the Court of Appeal delivered its much-anticipated ruling in the case of Higgs v Farmor’s School.
Kristie Higgs, a former pastoral administrator and work experience manager at Farmor’s School, has won a significant legal battle concerning her dismissal over social media posts expressing her Christian beliefs. In 2018, Higgs shared Facebook posts criticising the teaching of LGBTQ+ relationships in primary schools, which led to her dismissal for gross misconduct.
What is a protected characteristic?
The Equality Act 2010 (‘EqA’) outlines specific attributes or traits, known as protected characteristics, that are legally safeguarded against unlawful discrimination. The nine protected characteristics are: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.
This case concerns religion and belief.
Discrimination based on religion or belief includes direct and indirect discrimination, harassment, and victimisation. The EqA defines “religion” as any religion, and “belief” as any religious or philosophical belief. The law does not provide a specific list of recognised religions or beliefs, and this will be determined by an Employment Tribunal applying legal tests established through case law.
Background
Kirstie Higgs was dismissed for gross misconduct following Facebook posts on her personal Facebook account, in which she expressed her concerns about sex education in schools, specifically criticising the teaching of ‘gender fluidity.’
Subsequently, Higgs brought claims for direct discrimination and harassment on the ground of her religious beliefs. Due to her religious beliefs, Higgs does not believe someone can change their biological sex and that marriage is an institution between only male and female individuals. The Employment Tribunal dismissed her claims, finding that, while Higg’s beliefs were protected under section 10 of the EqA she was not dismissed as a result of her religious beliefs but because the school had concerns that she would be perceived as homophobic or transphobic, by the wider school community.
The school sought to justify her dismissal on the basis that the posts in question were inappropriately voiced and included insulting references to the promoters of gender fluidity and LGBT community, which were liable to damage the school’s reputation in the community.
The Appeal
The Employment Appeal Tribunal upheld her appeal, determining that the Employment Tribunal had neglected to evaluate whether her dismissal was a proportionate response to the way she expressed her beliefs, as required under the European Convention on Human Rights.
The Court of Appeal has now also found in favour of Higgs and held that the dismissal due to posts made on her personal Facebook account was not objectively justified. Subsequently, it constituted as unlawful direct discrimination on the ground of religion and belief.
There was no indication that Mrs. Higgs was unfit to work in a school. She had been employed there for six years, and the school had not raised any issues with her performance.
Whilst the school had valid concerns about the language used in the posts, the dismissal was deemed disproportionate. The posts were not intended to incite hatred towards gay or transgender people. Higgs made it clear to the school that she did not condone the language used in the post. Additionally, there was no evidence of harm to the school’s reputation, and it was acknowledged that the posts did not represent the school’s views. Despite concerns about her views influencing her work, neither the panel nor the tribunal believed this to be likely. While the employee’s conduct was unwise, it did not justify her dismissal.
The Court of Appeal found that Higg’s dismissal was not objectively justified and accordingly constituted unlawful discrimination.
The Court of Appeal confirmed that employers cannot dismiss or other sanction employees for expressing a protected religious or other philosophical belief because they find the belief objectionable or to protect their reputation. However, if disciplinary action is motivated by something objectionable in the way that view is expressed then such action can be lawful provided it is a proportionate response to the objectionable feature of the expression of belief. Given that Higgs’ views had not been expressed in work nor that she had displayed discriminatory attitudes in her treatment of pupils, it was found that her dismissal was disproportionate and therefore unlawful.
How we can help
The case underscores the very delicate balance employers must maintain between upholding workplace and social media usage policies but also having to respect employees’ human rights to freedom of expression and religious belief, especially when it relates to controversial issues which may be part of wider so-called “culture wars”. Employers must ensure their policies are up-to-date and that training is regularly carried out, including the use of social media, to navigate such sensitive issues appropriately and thoroughly investigate concerns to ensure that sufficient reputational damage had been caused, and this can be evidenced, and that any disciplinary action is proportionate, taking into account individuals’ rights.
Capital’s Employment & Immigration team has over 25 experienced employment lawyers and HR professionals who can advise and support you. Get in touch with us today.
