Higgs v Farmor’s School – employee’s dismissal for social media posts was discriminatory

A Christian school administrator, who was dismissed after sharing Facebook posts considered transphobic and homophobic, has been successful in her appeal to the Court of Appeal, who concluded that her dismissal was not objectively justified, and accordingly, the dismissal constituted unlawful discrimination.

Background on Higgs v Farmor’s School

Mrs Higgs (the “Claimant”) is a Christian and was employed by Farmor’s School (the “School”) as a pastoral administrator and work experience manager from 2012. In October 2018, the School received an anonymous complaint from a parent of the School that the Claimant had been “posting homophobic and prejudiced views against the LGBT community” on social media. The posts in question were critical of sex education in schools, and in particular, the teaching of gender fluidity and same-sex marriage.

The Claimant was suspended and, following an investigation and disciplinary hearing, was dismissed for gross misconduct. The School found that the Claimant had not appreciated or understood the implications that the post may have on its reputation in the local community.

Claim and appeal to the Employment Appeal Tribunal

The Claimant brought a claim in the Employment Tribunal (the “ET”) for discrimination and harassment on the grounds of her religion and beliefs. In particular, the Claimant did not believe in gender fluidity, that someone could change their biological sex or gender, nor did she believe in same-sex marriage as she believed that this was contrary to biblical teaching.

The ET held that all of the Claimant’s beliefs were protected under the Equality Act 2010. However, it held that the Claimant had not been discriminated or harassed because of those beliefs. Instead, the ET concluded that the Claimant had been dismissed by the School because they believed that the posts shared on social media could, in the view of parents and others in the local community, be seen to be homophobic and transphobic which are unprotected beliefs.

The Claimant appealed to the Employment Appeal Tribunal (the “EAT”), who allowed the appeal. The EAT remitted the case to be reheard by the original Tribunal, which the Claimant complained risked her being denied justice. Permission was therefore granted for the Claimant to take her claim to the Court of Appeal for further consideration.

Court of Appeal decision

The Court of Appeal allowed the appeal, finding that the EAT had erred in ordering a remittal to the original Tribunal. The Court of Appeal found that the Claimant’s dismissal constituted unlawful direct discrimination on the grounds of religion or belief.

The Court of Appeal held that the dismissal of an employee merely because they have expressed a religious or protected belief will constitute unlawful direct discrimination within the meaning of the Equality Act, even where the employer has done so to seek to protect its reputation.

The court clarified that where the dismissal is due to the objectionable way in which a belief is expressed, rather than simply expression of the belief itself, this could be lawful, but only if the employer can show that dismissal is a proportionate response.

Underhill LJ (giving the leading judgment) found that whilst the School was entitled to object to the Facebook posts because of the language used towards the LGBT community and the content relating to sex education in schools, dismissal was an “unquestionably disproportionate response” for the following reasons:

• The language in the Claimant’s posts was not grossly offensive and was not created by the Claimant. The posts consisted of messages from others that had been reposted and the Claimant made it clear that she did not agree with the language used
• There was a lack of evidence of reputational damage to the School, and it was considered that the School was instead concerned about potential damage in the future
• There was a lack of evidence that the Claimant’s views would influence her work
• The ET had indicated that it would have likely found that the Claimant’s dismissal was unfair (however her claim in this regard was out of time)
• The Claimant’s lack of “insight” into the consequences of her actions was not relevant as the case was not one that would otherwise justify dismissal.

What does this case mean for schools?

This decision demonstrates the difficulty that schools may experience in dealing with expressions of protected beliefs especially where they conflict with other protected characteristics under the Equality Act 2010. Even where an expression of belief is clearly objectionable, a careful balance will still need to be struck between an individual’s right to hold such beliefs and the potential impact on other protected groups and the school’s reputation.

In particular, schools should take note of the following key considerations arising from this case:

• Dismissal of an employee just because they have expressed a protected belief, which is unconnected to their work, even if it is controversial, may be discriminatory
• Any disciplinary action taken against an employee, up to and including dismissal, as a result of an objectionable expression of a protected belief must be proportionate and objectively justifiable
• Actual evidence of reputational damage, now or in the future, will be key in determining whether dismissal is objectively justifiable in such circumstances.

This is not to detract from a school’s responsibility to prevent unlawful discrimination and harassment in the workplace, and appropriate action should be taken where an employee’s actions or statements could be considered discriminatory. However, such action must be carefully considered on a case-by-case basis.