School employee’s dismissal for gender-critical Facebook posts was discriminatory
As discussed in our previous article on the EAT case, Mrs Higgs brought claims for discrimination and harassment on the grounds of religious beliefs after her employer, Farmor School, dismissed her as a pastoral administrator and work experience manager. Mrs Higgs had been dismissed after complaints were received about posts she had made on the site social media Facebook, being critical same sex marriage and gender fluidity.
After Mrs Higgs’ initial claim was dismissed, she appealed to the EAT where she was successful on various points. Her appeal was accordingly remitted the case to the tribunal for further determination. Mrs Higgs was not, however, satisfied with a remittal and appealed to the Court of Appeal, stating that the EAT should have upheld her claims instead. That appeal was permitted to proceed and the Court of Appeal decision followed.
Court of Appeal Judgement
The Court of Appeal (COA) agreed with Mrs Higgs, stating that the EAT was wrong to order remittal of the dismissal claim. It found that the dismissal was not justified and amounted to unlawful direct discrimination on the ground of religion or belief.
Mrs Higgs’ dismissal had not been motivated by the fact that she held the beliefs about which she posted. It was, instead, motivated by the objectionable way in which she went about voicing those beliefs. For employment law purposes, this meant that she was not being dismissed for holding her Christian beliefs, but for how she was manifesting them. The various rights provided by the Human Rights Act 1998 and European Convention on Human Rights, including those that allow freedom of thought, conscience and religion and the right to manifest such religion or belief are hard to interfere with. Any interference has to be objectively justified and a proportionate response and it was decided that the school failed to meet this test in this case.
The COA acknowledged that the school was entitled to object to the posts because of the offensive language towards gay and transgender people, and because the context of sex education in schools was relevant to Mrs Higgs’ work. It did not, however, accept that dismissal was the most appropriate response in the circumstances. The decision included reasonings that:
- the posts were not found to be grossly or gratuitously offensive;
- many of the posts were not Mrs Higgs’ own words, but those of others that she had simply reposted;
- the risk of reputational damage had been a key element of the school’s rationale for dismissal, however there was no actual evidence of reputational damage caused. The posts were made on Mrs Higgs’ personal Facebook account, in her maiden name and did not reference her work;
- neither the school, nor Mrs Higgs believed that her beliefs would actually affect her work. Mrs Higgs was a long-standing employee and never had any complaints about her work nor exhibited discriminatory attitudes towards pupils.
Accordingly, Underhill LJ considered that “dismissal was unquestionably a disproportionate response” and Mrs Higgs succeeded in her claims.
Commentary
This is a landmark decision. Risk of reputational damage caused by an employee’s online conduct is a frequent cause for upset for employers and this case is a very helpful reminder that a move to discipline employees for such conduct will not always be straightforward, particularly if the conduct complained of embodies any form of qualifying ‘belief’ under the Equality Act 2010. This should not be viewed as only covering online conduct, but expressions made in other forums too. Reassuringly, is not the case that employers have to tolerate all and any behaviour that an employee may wish to demonstrate, however there are a number of constraints in place, and careful thought will need to be applied to ensure that any action taken can be justified.
While this case may be felt to impose an uphill struggle for employers, on a practical level, it does provide us with useful guidance that can be applied when these situations arise. Employers concerned about reputational risk in manifestation cases should be mindful of the approach taken by Underhill LJ and look to ensure that their own rationale cannot be judged as having the same shortcomings of Farmor School. Should you find yourself in the unenviable situation where you are grappling with a concern of consequences for your business vs the right of an employee to manifest their beliefs, do get in touch with our team who would be happy to help.
