When two worlds collide: protected beliefs in the workplace

Higgs v Farmor’s School

The Court of Appeal has published its judgment in Higgs v Farmor’s School which has been described by some as a “landmark free speech case”. The key issue to be determined on appeal was whether Ms Higgs’ dismissal by Farmor’s School because of posts she made on Facebook amounted to direct discrimination and harassment on the ground of her protected beliefs.

The Court of Appeal’s decision to uphold Ms Higgs’ discrimination and harassment claims has wider implications for employers dealing with situations where employees with protected beliefs express those views in an offensive or controversial way in the workplace or online. An employer who wants to pursue disciplinary action in such circumstances should be prepared to justify their actions objectively. The Court of Appeal made it clear that the threshold of offensiveness is a high one.  

Five outside parties, including the Equality and Human Rights Commission (EHRC), intervened in this case, highlighting its significance and potential impact.

Background

The Claimant, Kristie Higgs, was a pastoral administrator and work experience manager at Farmor's School. Ms Higgs was dismissed by the School in 2019 for alleged gross misconduct related to a series of posts and re-posts she made on her personal Facebook page 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 traditional marriage between a woman and a man which subverted Christian beliefs. Ms Higgs’ posts led to a complaint from a parent. The School was concerned that the posts were intemperately expressed and included insulting references to others which could damage the School’s reputation in the community.

Ms Higgs brought various claims against the School in the Employment Tribunal including discrimination and harassment which were unsuccessful at first instance. Ms Higgs’ appeal to the Employment Appeal Tribunal was allowed and her claim was remitted to the Employment Tribunal. However, Ms Higgs considered that the EAT should not have remitted the case, and successfully appealed to the Court of Appeal on the basis that the EAT should have held that her claim succeeded.

Accepting that Ms Higgs’ beliefs – that gender is binary and that same-sex marriage cannot be equated with traditional marriage – are protected by the Equality Act 2010 following the EAT’s decision in Forstater v CGD Europe, the key issue for the Court of Appeal was to determine whether or not Ms Higgs’ discriminatory dismissal was objectively justified.   

Decision

The Court of Appeal found that by dismissing Ms Higgs, the School had unlawfully directly discriminated against her because of her religion or belief. In reaching their decision the Court of Appeal has said that there are certain situations where direct discrimination can be justified. In cases involving the manifestation of a belief, applying the European Convention on Human Rights will result in the Equality Act direct discrimination provision following a different legal test. 

The Court of Appeal determined that Ms Higgs’ dismissal was not objectively justified because, for the following reasons, it was a disproportionate response to her posts.

1. Ms Higgs’ posts did not pass the threshold of ‘objectionability’ and were not grossly offensive. The Court of Appeal contrasted Ms Higgs’ posts with the direct attacks on homosexuality found in other cases (outside of the employment context but still relevant here).
2. The re-posts were not Ms Higgs’ own language, and she had made clear to the School during the disciplinary proceedings that she did not agree with that language. While that did not absolve her of responsibility, it was relevant to the question of culpability.
3. There was no evidence that the reputation of the School had been damaged as a result of Ms Higgs’ posts. Only one parent had complained and the School’s concern was about future reputational damage. The Court of Appeal found that there was no risk of readers attributing Ms Higgs’ views to the School – the posts were made on her personal Facebook page, in her maiden name (which she did not use at work) and with no reference to the School.
4. Neither the disciplinary panel nor the Employment Tribunal believed that Ms Higgs would let her views influence her work. There had been no complaints about Ms Higgs’ work throughout her six years working for the School.

Even though Ms Higgs did not appear to have any insight into the potential impact of her actions on the School (for example, she refused to delete the posts), the Court of Appeal found that there is no universal rule that a lack of insight can justify a decision to dismiss (although it may in circumstances where, for example, an employer needs to be sure that the employee understands what they have done wrong in order to prevent a more serious repetition of the misconduct in the future).

The Court of Appeal considered that there are understandable reasons why in some cases an employee may not be willing to admit that their behaviour is wrong especially where it is the manifestation of a deeply held belief. It would be for an employer in those circumstances to discuss or offer guidance to an employee about how they might more appropriately and moderately express their views on such a belief.

Comments

Employers should recognise that employees have the right to manifest their beliefs, but this right is qualified and can be limited if it impacts the rights and freedoms of others. Practically this means that those views must not be manifested or expressed in an objectionable way. The language and manner in which an employee expresses their beliefs are crucial factors in determining whether the manifestation is objectionable. This decision makes clear that the objectionability threshold is a high one – ‘intemperate’ language will not be enough but language that is gratuitously offensive (or offensive for the sake of offence) is more likely to be.  

Any disciplinary action taken in response to an employee's objectionable manifestation of their belief should be carefully justified. This may be by reference to matters such as reputational damage to the employer or the likely impact of the manifestation of the belief on the employee’s ability to carry out their role, for example if a teacher acted in a discriminatory way because of their beliefs towards a pupil. However, employers should be cautious about relying on reputational damage as a justification for disciplinary action because the potential harm must be significant and directly related to the employee’s conduct. Employers should consider actions short of dismissal (including non-disciplinary action such as publishing an external statement in response to concerning conduct).

There may be situations where objectionable conduct which is a manifestation of a protected belief does justify dismissal. In Page v NHS Trust Development Authority the Court of Appeal ruled that the dismissal of a non-executive director was lawful after he expressed his views in media interviews about the immorality of homosexual acts, same-sex marriage and same-sex adoption. The Court found that the dismissal was not because of the director’s beliefs but because he spoke to the national media. As the Court explained in that case, there is “no one size fits all” approach; each case requires nuanced decision making.

The message for HR managers and in-house lawyers dealing with controversial social media posts about beliefs that amount to objectionable conduct is to consider tolerance, proportionality and whether the manifestation of the belief affects an employee’s ability to do their job. Each case should be looked at individually taking into account the guidance issued by the Employment Appeal Tribunal (and endorsed by the Court of Appeal) in this case around the tone and content of the manifestation of a protected belief.

An employer should, wherever possible, satisfy itself that an employee’s misconduct can be distinguished, or separated, from their protected beliefs. This will be a key factor in determining the lawfulness of any disciplinary action taken against an employee, and an employer’s motivation will be closely scrutinised by the tribunals. Employers must also be alive to unlawful stereotyping (e.g. assuming someone who holds gender critical beliefs dislikes trans people) which could mean they are unable to rely on the objective justification defence having been directly motivated by the protected beliefs rather than the manifestation of them. The Court of Appeal did not make findings on this issue but it did state that it was “inclined to believe” that that would be the correct analysis and quoted from the EHRC’s submissions on it. 

If you would like to discuss any of the issues arising in this appeal decision, please do get in touch with your usual contact in the CMS Employment team.

Authors: Catherine Taylor (Partner), Val Dougan (Professional Support Lawyer) and Aisleen Pugh (Professional Support Lawyer)