This decision has far-reaching implications for employers, particularly regarding workplace relationships, the expression of employees’ views and beliefs, and the effect on colleagues and the public. It underscores the importance of employers carefully assessing their approach to employees’ potentially controversial beliefs, both within and outside the workplace, especially on social media.
Background of the case
Mrs Higgs, a Pastoral Administrator and Work Experience Manager at Farmor’s School, posted her views on same-sex relationships and gender fluidity on Facebook. She considered these to be prohibited by the Bible. Moreover, Mrs Higgs raised concerns and criticised the education system that these were taught in schools.
A parent of one of the students complained that Mrs Higgs’ personal views were “homophobic and prejudiced” and that these comments could negatively influence “vulnerable pupils”.
Following an investigation conducted by the school, Mrs Higgs was dismissed for gross misconduct, including a breach of the School’s Code of Conduct.
The Employment Tribunal initially dismissed her claims, finding that she was not dismissed because of her beliefs, but because the school was concerned about possible reputational damage due to her actions and language used being seen as homophobic and transphobic. However, the Employment Appeal Tribunal later found in her favour. Both parties appealed to the Court of Appeal, the Claimant citing that the findings by the EAT should have been made outright in her favour, and the Respondent challenging the EAT’s reasoning of the proportionality test.
Court of Appeal Judgment
The Court of Appeal (COA) permitted Mrs Higgs’ appeal and agreed that she had been subject to less favourable treatment. The COA cited the case of Maya Forstater v CGD Europe, for reference. The COA articulated in Forstater that gender-critical beliefs were protected “philosophical beliefs” under the Equality Act 2010. However, the COA did stipulate, that if the manifestation of that belief was displayed or demonstrated in an unacceptable way, determined objectively, then the dismissal could potentially be lawful, subject to the employer proving that the dismissal was a proportionate response.
The School argued that dismissal was proportionate to reach a legitimate aim in that the Facebook posts comprised “gratuitously offensive” references to those who promote gender fluidity and the LGBTQIA+ community. The School felt that it had an obligation to protect those most vulnerable i.e. those from the LGBTQIA+ community and parents who had reported the posts to protect the School’s reputation from significant damage.
The COA ruled that Mrs Higgs’ beliefs were not expressed in the school and had not affected her behaviour towards school pupils. Therefore, the school’s treatment towards Mrs Higgs’ was disproportionate to the perceived reputational risk and that her dismissal was by no means a proportionate sanction for her actions. Undoubtedly, it was reckless of Mrs Higgs to post such material on her Facebook containing potentially offensive language in circumstances where individuals associated with the school were aware of her role. The COA found that her dismissal was discriminatory, as the risk of reputational damage was speculative; only one parent had raised concerns. In addition, the COA found the School had not demonstrated that dismissal was the least restrictive means of addressing the issue, and said that a warning or clarification from the school would have been a more proportionate response.
The Legal position
The Equality Act 2010 (EqA 2010) prohibits any form of discrimination which relates to one or more protected characteristic – religion and/or belief being one of those. Section 10 of the EqA 2010 says: Belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief. The belief aspect of this characteristic has been a battleground of legal debate for many years, particularly following the case of Grainger v Nicholson [2010]. In essence, Grainger ultimately set out the following principles;
- The belief must be genuinely held.
- it must be a belief and not an opinion or viewpoint based on the present state of information available.
- It must be a belief as to a weighty and substantial aspect of human life and behaviour.
- it must attain a certain level of cogency, seriousness, cohesion and importance and
- it must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.
Implications for Employers
There is no new law or legal principle which derives from the Higgs case. However, what it does provide is further clarity as to what will constitute less favourable treatment and whether the treatment can be objectively justified.
This judgment is significant for employers, particularly as care and diligence is required when unpacking social media posts and also whether the individual and/or the post in question has overstepped the mark.
There have been a large volume of cases with conflicting outcomes on social media dismissals and discriminatory treatment. In most employment disputes where an employee has expressed views that do not align with those of their employer, the employer may cite ‘reputational damage’ as the key reason for dismissal or other less favourable treatment.
The COA highlighted the distinction between views expressed online that may be offensive and those that are “grossly offensive.” It further noted that Mrs Higgs primarily conveyed her views through reposts; therefore, this evidence could not amount to actual reputational damage. This case demonstrates that the employer must carefully consider what conduct constitutes “sufficiently objectionable,” ensuring that any action taken is proportionate and capable of being objectively justified in the circumstances.
Cases involving the expression of personal beliefs, both inside and outside the workplace, require careful consideration, as dismissing an employee solely for expressing a protected belief will almost certainly amount to discrimination. Employers must continue to take appropriate steps to fulfil their duty to prevent discrimination and harassment, particularly in relation to religion and belief.
One recommendation for employers wanting to avoid issues such as the ones found in the Higgs case, is for there to be a robust social media policy in place, which can be referred to in the event an employee expresses views which might not be appropriate.
How can we help?
This case shows that the law around expression of views and beliefs is complex and difficult to navigate.
Our experienced employment lawyers and advisors can help guide you through all the steps you need to take to ensure you are doing all you can to keep your business safe.