Religion or belief: manifestation of and assessing proportionality

Higgs v Farmor’s School

Employers cannot discipline an employee for manifesting a protected belief because someone else may be offended - unless they have also considered whether the action is both necessary and proportionate.

Background

Ms Higgs shared two posts via her private Facebook account which openly criticised teaching about LGBTQ+ relationships at her son’s Church of England primary school and encouraged other Facebook users to sign a petition against plans to make ‘relationship education’ compulsory for young children. The headteacher received an anonymous complaint that described the posts as being ‘homophobic and prejudiced to the LGBT community’. Ms Higgs was suspended from her role as pastoral administrator and work experience manager. An investigation was then followed by a meeting at which Ms Higgs alleged that she was questioned for six hours in an ‘intimidating’ manner and where her Facebook posts were likened to ‘pro-Nazi’ views. Following the meeting, Ms Higgs was dismissed from her role for gross misconduct.

Ms Higgs brought a tribunal claim for direct discrimination and harassment on the grounds of religion or belief, relying on her lack of belief in either gender fluidity or same-sex marriage, as well as her belief in marriage as being between a man and a woman. The tribunal dismissed her claims, finding that while her beliefs were protected under the Equality Act, she’d been dismissed not because of those beliefs but rather because of the school’s concern that she would be perceived as holding homophobic and transphobic views. Ms Higgs appealed.

The EAT upheld her appeal and remitted her case to the tribunal. Ms Higgs however believed that the EAT should have gone further and have held for itself that her claim succeeded. She appealed to the Court of Appeal on that basis.

Court of Appeal decision

Ms Higgs’ appeal was allowed and a finding that she succeeds on her discrimination claim was substituted.

The judgment is long and complicated but Lord Justice Underhill, who gave the leading judgment, helpfully summarised the essential conclusions:

The dismissal of an employee merely because they have expressed a religious or other protected belief to which the employer, or a third party with whom it wishes to protect its reputation, objects will constitute unlawful direct discrimination within the meaning of the Equality Act.
However, if the dismissal is motivated not simply by the expression of the belief itself (or third parties’ reaction to it) but by something objectionable in the way in which it was expressed, determined objectively, then the effect of the decision in Page v NHS Trust Development Authority is that the dismissal will be lawful if, but only if, the employer shows that it was a proportionate response to the objectionable feature – in short, that it was objectively justified.
Although point 2 modifies the usual approach under the Equality Act so as to conform with that required by the European Convention of Human Rights, that ‘blending’ is jurisprudentially legitimate.
Ms Higgs, who was employed in a secondary school, had posted messages, mostly quoted from other sources, 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 marriage between a man and a woman. It was not in dispute, following the earlier decision of the EAT in Forstater v GCD Europe, that Ms Higgs’ beliefs that gender is binary, and that same-sex marriage cannot be equated with marriage between a man and a woman are protected by the Equality Act.
The school sought to justify her dismissal on the basis that the posts in question were intemperately expressed and included insulting references to the promoters of gender fluidity and ‘the LGBT crowd’ which were liable to damage the school’s reputation in the community. This came nowhere near justifying Ms Higgs’ treatment because, amongst other things:

the language of the re-posts was not grossly offensive
the language was not Ms Higgs’ own
the school’s disciplinary panel accepted that there was no evidence that the reputation of the school had been damaged: its concern was about potential damage in the future
the risk of widespread circulation was speculative at best—the posts were made on Ms Higgs’ personal Facebook account, in her maiden name and with no reference to the school—and by the time of the disciplinary hearing, several weeks after the posts were made, only one person was known to have recognised who she was
even if readers of the posts might fear that Ms Higgs would let her views influence her work, neither the disciplinary panel nor the tribunal believed that she would do so. There was no reason to doubt her assertion that her concern was specifically about the content of sex education in primary schools, that she wouldn’t bring this into school and that she would never treat gay or trans pupils differently

Comment

This decision is not a surprise in light of developing case law in relation to those who have expressed views that gender cannot be fluid. Employers will have to think carefully about what instructions are given to employees in terms of what can and cannot be said and it may be that a simple social media policy which says that an employee will not say or do anything inside or outside work which brings the employer into disrepute is what is needed, with a disciplinary policy to say that any breach of this will be regarded as gross misconduct. This then gives employers the flexibility to look at any comment on a case-by-case basis.