In brief

The Court of Appeal has held that dismissing an employee for a social media post expressing gender critical beliefs and beliefs on same sex marriage was disproportionate, and therefore discriminatory. This decision confirms the legal tests for balancing conflicting protected beliefs, underscoring the basic principle that employees have the right to manifest their religious or philosophical beliefs, subject only to limited, objectively justifiable exceptions. While the post was arguably offensive to some gay and/or trans people, expressing a protected belief that is offensive to others does not by itself justify disciplinary action; there must be something objectively objectionable in the manner of expression. This is a high threshold; merely “intemperate” language is not sufficient.

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Contents

1. Key takeaways
2. In more detail
   1. Facts
   2. Legal principles and issues
   3. Employment tribunal and EAT decisions
   4. Court of Appeal decision

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Key takeaways

This decision confirms the legal landscape but has reached a more decisive outcome than the EAT: on the facts of this case, dismissal was disproportionate and therefore amounted to direct discrimination on the grounds of religion or belief. In the next section we provide more detail of the particular facts.

Our view is that the key principles for employers when dealing with conflicts of beliefs remain the same:

1. The importance of freedom of speech and expression.
2. There is no right not to be offended – action is only justified where the manifestation of the belief is objectionable, which is a high threshold.
3. Consider the context – determining whether something is objectionable, as well as the severity of any response (if any), will be context specific.
4. Avoid a knee-jerk reaction to third party complaints.
5. Do not make assumptions about an employee’s views or what an individual might do – the fact they hold a particular belief does not indicate they would discriminate against or harass colleagues or customers/service users.
6. Ensure your policies are clear and employees are regularly given training that all beliefs are treated equally.
7. Leadership must be balanced and even-handed.
8. Where concerns arise as to reputational damage, disciplinary action and dismissal are unlikely to be justified without cogent evidence.

This does not mean employers should ignore concerns. On the facts of this case it was appropriate for the employer to look into the matter, but dismissal was not justified.

In more detail

Facts

Mrs Higgs is a Christian who was employed in a secondary school as an administrator and work experience manager for approximately six years.

She reposted a post on her personal Facebook page about relationships and sex education in schools. The post expressed concern that “children will be taught that all relationships are equally valid and ‘normal’, so that same-sex marriage is exactly the same as traditional marriage, and that gender is a matter of choice, not biology, so that it’s up to them what sex they are” and that “expressing and teaching fundamental Christian beliefs, relating to the creation of men and women and marriage will in practice become forbidden – because they conflict with the new morality and are seen as indoctrination into unacceptable religious bigotry”. The full text is in paragraph 10 of the Court of Appeal’s judgment. Mrs Higgs prefaced the repost with the statement that “they are brainwashing our children.”

This led to a complaint by a parent that Mrs Higgs had been posting homophobic and prejudiced views against the LGBT community and that she might exert influence over vulnerable pupils who may end up in isolation for whatever reason.

The school investigated and further reposts were identified. These can be read at paragraph 12 of the Court of Appeal’s judgment. They included references to “perverted vision of gender fluidity”; labelling this as “a form of child abuse”, especially when it entails surgical changes or taking hormones; “the LGBT crowd … promoting mental illness”.

The school’s investigation resulted in Mrs Higg’s dismissal. This was on the basis of the language in her posts (not the underlying belief); the school concluded this risked bringing the school into disrepute and breached aspects of the school’s code of conduct (e.g. inappropriate language and an online persona that was not consistent with the expected professional image).

The school’s case was based on the risk of damage only, not any actual damage. The perceived risk was that third parties would believe that Mrs Higgs would express homophobic or transphobic view to pupils, or exhibit prejudice to gay or trans people. This was despite the fact that:

• The school accepted that Mrs Higgs would not do this.
• There was no actual evidence of any damage to the school’s reputation; there had only been one complaint.

Mrs Higgs brought proceedings alleging direct discrimination on the basis of a protected belief, as well as harassment. Broadly speaking, her protected beliefs can be described as gender critical (i.e. disagreeing that someone can change their biological sex) and a Biblical-based view that marriage is a life-long union between a man and a woman.

Legal principles and issues

The European Convention of Human Rights (ECHR) includes freedoms of religion and expression. Freedom of religion includes freedom to manifest that religion. This freedom to manifest and the freedom of expression are qualified rights: they can be limited where prescribed by law and where necessary in a democratic society for the protection of the rights of others (or other specified grounds).

The Equality Act 2010 (EqA) prohibits direct discrimination because of, or harassment related to, religion or belief. There is no mechanism to justify direct discrimination or harassment because of religion or belief.

UK courts and tribunals are required to interpret the EqA as far as possible to give effect to the ECHR freedoms. Over time, they have interpreted “religion or belief” as including manifestations of the relevant belief. This case and earlier ones have grappled with how to also import the right to limit manifestations of religion, belief or expression into the concept of direct discrimination.

Employment tribunal and EAT decisions

The ET dismissed Mrs Higgs’s claims. Although she had a protected belief, it accepted the school’s case that this was not the reason for dismissal, but rather the risk of reputational damage.

The EAT allowed the appeal and remitted the case to the ET. In short, the EAT concluded that the ET had failed to conduct the balancing exercise required to determine whether the reason for dismissal was to be treated as an unobjectionable manifestation of the belief (which would be direct discrimination) or an objectionable manifestation (which would not be directly discriminatory).

Mrs Higgs appealed to the Court of Appeal on the basis that the EAT should not have remitted the case but instead substituted a finding that there could only be one conclusion: she had been directly discriminated against.

Court of Appeal decision

The court allowed the appeal: the school had directly discriminated against Mrs Higgs by dismissing her.

The court confirmed the legal approach in this area, i.e. the fundamental nature of freedoms of religion, belief and expression, and importing a proportionality test into the EqA test for direct discrimination. Summarising and drawing together different parts of its judgment:

1. Is there a sufficiently close and direct nexus between the act and the underlying belief such that it can be considered a manifestation of the belief? (This wasn’t disputed in this case.)
2. Is the manifestation something to which objection could justifiably be taken?
3. Even if yes, is the employer’s reaction to the manifestation disproportionate?
4. If it is not disproportionate, there is no direct discrimination. If it is, there is direct discrimination (i.e. the reason for the employer’s actions will be treated as being the manifestation of the protected belief rather than rather than the distinct, objectionable manner of the manifestation).

There are a number of potentially relevant considerations in determining points 2 and 3: (a) the content, tone and extent of the manifestation; (b) the employee’s understanding of the likely audience; (c) the extent and nature of the intrusion on the rights of others, and any consequential impact on the employer’s ability to run its business; (d) whether the employee has made clear that the views expressed are personal, or whether they might be seen as representing the views of the employer, and whether that might present a reputational risk; (e) whether there is a potential power imbalance given the nature of the employee’s position or role and that of those whose rights are intruded upon; (f) the nature of the employer’s business, in particular where there is a potential impact on vulnerable service users or clients; (g) whether the limitation imposed is the least intrusive measure open to the employer.

The court did not expressly decide whether the school was entitled to take objection to the posts but decided that dismissal was disproportionate even if it were:

• In context, the language in the posts was not grossly offensive. In particular, it did not incite hatred or disgust.
• These were reposts – this was relevant to the degree of Mrs Higgs’ culpability.
• There was no evidence of damage to the school’s reputation. It was accepted that no-one would believe her views represented those of the schools. Any fear that her posts would be widely circulated was speculative at best.
• The school did not believe that Mrs Higgs would let her views influence her work.

Higgs v Farmor School, Court of Appeal