A look at the implications for employers of the court of appeal’s finding in Higgs v Farmor’s School that it was discriminatory for a school to dismiss an employee because she had reposted remarks that a parent believed indicated prejudice against the LGBT community.
Application of the Equality Act
Religion and belief is a protected characteristic under the Equality Act and it is unlawful to treat an employee less favourably because they have sought to express their religion or belief. However, the courts have held that, if an employee is disciplined because they have expressed those beliefs in an objectionable or offensive way, rather than because of the belief itself, then that will not amount to discrimination.
Facts of the case – Higgs v Farmor’s School
Mrs Higgs is a Christian and worked as a pastoral administrator and work experience manager at Farmor’s School.
A parent complained about Mrs Higgs’ Facebook posts. In one, she reposted a post written by someone else, which concerned teaching pupils about same-sex relationships and gender being a matter of choice and remarked that this amounted to “brainwashing”. In another, she reposted views that had been expressed by others, which referred to gender fluidity as a “perverted vision” and stated that “the LGBT crowd with the assistance of the progressive school systems are destroying the minds of normal children by promoting mental illness”.
The parent raised a concern that these posts demonstrated that Mrs Higgs had homophobic and prejudiced views against the LGBT community.
The school ultimately dismissed Mrs Higgs for gross misconduct, partly due to concerns that Ms Higgs posts might damage the school’s reputation.
Mrs Higgs pursued claims for direct discrimination and harassment.
Employment Tribunal decision
Mrs Higgs claimed that her dismissal had been carried out because of her religious and other beliefs, which included a “lack of belief” in same sex marriage, gender fluidity and transgenderism, and a belief in the literal truth of the Bible, including Genesis 1 verse 27: “God created man in His own image, in the image of God He created him; male and female He created them”.
The Tribunal found that the school did not dismiss her because of her religious or philosophical beliefs, but due to concerns that her posts could be perceived as homophobic and transphobic and therefore could potentially harm the school’s reputation.
Employment Appeal Tribunal
Mrs Higgs appealed to the EAT which held that the Tribunal had failed to consider a number of relevant legal questions, including whether the school’s sanction had been carried out because of her manifestation of her beliefs, and whether the sanction was proportionate. The EAT remitted the case to the Tribunal. Mrs Higgs then appealed to the Court of Appeal, on the basis that the EAT should not have decided the case in her favour, rather than remitting her case back to the Tribunal.
The Court of Appeal ruling
The court held that, applying the relevant law, if an employee is dismissed because they have expressed their beliefs in an objectionable way, the dismissal will be lawful, but only if the employer can show that dismissal was an objectively justified and proportionate response.
The court found that, in this case, “dismissal was unquestionably a disproportionate response”
The court’s central reasons for reaching this conclusion were:
- Mrs Higgs’ posts were not grossly or gratuitously offensive.
- The posts were mainly not her own words but those of others (that she has reposted) which made her less culpable.
- There was no evidence that the school’s reputation had been damaged, and the risk of any damage was low, in part because the posts were made from Mrs Higgs’ personal account and made no reference to the school.
- There was no evidence that Ms Higgs’ work at the school would be affected by the views she held
The court noted that, where a risk of reputational harm is established (which it was not in this case), an employer can lawfully interfere with an employee’s right to express their beliefs because of reputational concerns, but only if this interference is proportionate. The court outlined three potentially relevant factors:
- The subject matter of the belief. If the belief expressed has nothing to do with the employer’s business, then it is less likely that a risk of reputational harm will be established.
- The way in which the beliefs are expressed. If the belief is expressed in an objectionable way, then that may justify action by the employer because of any reputational damage caused, but the threshold for offensiveness should be “high”. Merely intemperate expression of a belief would not usually justify any disciplinary action.
- Whether it is clear that the views expressed are personal to the employee, or whether it could be inferred by the comments that the employer also held the view. In such cases the risk or reputational harm is greater.
The court also warned against subjecting employees to disciplinary action motivated by stereotypical assumptions about the extent of an employee’s belief – and gave the example of equating gender critical beliefs with transphobia. It noted that treatment motivated by such assumptions will always amount to direct discrimination.
Lessons for employers applying the Equality Act
It is already very difficult for employers to manage competing rights and interests in circumstances where an employee expresses beliefs that are offensive to others. This challenge is compounded by the fact that Tribunals have determined that a very wide range of beliefs qualify for protection.
In this case, the court made it clear that, to justify disciplinary action in circumstances where the expression of a belief has caused offence and possible reputational damage, the employer must show that its actions were an objectively proportionate response to the facts. This is a high bar and means that employers may now find it more difficult to lawfully take disciplinary action in such cases. Any action taken in such circumstances should be very carefully considered.