Free speech or offensive language? Higgs v Farmor’s School

In this case, the Court of Appeal considered that dismissal for an employee's expression of controversial beliefs on social media amounted to unlawful discrimination. 

The Court also confirmed that the Equality Act protects gender-critical beliefs and the manifestation of such beliefs.

What are the facts of the case?

Mrs Higgs (the claimant) was employed as a pastoral administrator and work experience manager at Farmor's School, a secondary school.

In 2018, the claimant shared Facebook posts (on her personal account) expressing strong views against same-sex relationships being taught in schools and gender ideology in education. These posts, which reflected her religious convictions, were not made public and were only visible to her friends. However, a parent of a child at the school complained that the claimant had expressed homophobic and prejudiced views.

The school, therefore, brought disciplinary charges against the claimant for the comments made. Following an investigation and disciplinary process, a panel appointed by the school summarily dismissed her for gross misconduct. In particular, the claimant was dismissed for expressing views that the school considered potentially discriminatory and contrary to its policies on equality and safeguarding, citing potential reputational damage and violation of the school's code of conduct.

As a result, the claimant brought a tribunal claim alleging direct discrimination and harassment on the grounds of religion or belief under the Equality Act 2010 (the Act) s.13 and s.26.

What does the law say currently?

Under section 13 of the Act, a person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

In this case, the claimant alleged that she was discriminated against as she was treated less favourably because of her religious beliefs, in relation to gender being binary and that same-sex marriage cannot equate to that of a marriage between a man and a woman, than someone who did not hold those beliefs.

Section 26 of the Act states that a person (A) harasses another person (B) if:

• A engages in unwanted conduct related to a relevant protected characteristic; and
• the conduct has the purpose of effect of:
  • violating B's dignity; or
  • creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

Here, the claimant alleged that the school's conduct was related to her expression of her religious beliefs, which are protected characteristics, and that the dismissal violated her dignity.

What happened at the Employment Tribunal?

The employment tribunal dismissed the claimant's discrimination and harassment claim and found in favour of the school. The Tribunal found that the dismissal by the school was not due to the claimant's beliefs, but the manner in which she expressed them. The school perceived that the way in which the comments were expressed were potentially offensive and damaging to its reputation.

The claimant subsequently appealed the employment tribunal's decision to the Employment Appeal Tribunal, which granted the appeal and found that the employment tribunal had failed to properly assess whether the school's actions were a proportionate response to her manifestation of beliefs.

The employment appeal tribunal emphasised the need for a detailed proportionality assessment but made no findings and instead remitted the case back to the employment tribunal.

However, the claim arrived at the Court of Appeal (CoA) as the claimant took issue with the employment appeal tribunal's decision to remit rather than rule on the claim as a whole in her favour, therefore submitting her appeal with the CoA.

What was the Court of Appeal decision?

The Court of Appeal ruled in favour of the claimant, concluding that her dismissal constituted unlawful discrimination. In forming their judgment, the Court reaffirmed that beliefs such as the claimant's, including opposition to same-sex marriage and gender fluidity based on religious convictions, are protected under the Act. The Judge stated that 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 Act.

Expression of beliefs

The Court also acknowledged that while the manifestation of beliefs can be subject to limitations, the Court found that the claimant's Facebook posts, though potentially provocative, were not "grossly offensive." The judgment noted that the language used was largely from other sources and that the claimant had not exhibited discriminatory behaviour in her professional role.

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.

Reputational damage

The school sought to justify the claimant's dismissal on the basis that the posts in question were intemperately expressed and included insulting references to the promoters of gender fluidity and "the LGBTQ crowd" which were liable to damage the school's reputation in the community: the posts had been reported by one parent and might be seen by others. However, the Court observed that there was no evidence of actual reputational harm to the school resulting from the claimant's posts. The risk of such damage was deemed speculative, especially since the posts were made privately, under her maiden name, and without reference to the school.

Proportionality of dismissal

The Court concluded that dismissing the claimant was a disproportionate response. Given her unblemished record and the absence of any workplace misconduct, the Court suggested that less severe measures, such as clarifying the distinction between her personal views and the school's position, could have been considered.

What this means for you – tips for employers

• Establish clear policies regarding social media use and behaviour outside of work.
• Ensure that any disciplinary measures are justified and consistent with the principles of equality and non-discrimination.
• Carefully consider and balance the right to freedom of expression and religious beliefs with organisational policies and reputational considerations.
• Promote diversity and inclusion training for all staff, sensibly starting with managers and senior staff.
• Where potentially controversial comments have been made, explore whether further training or clarification of the comments can be considered.
• Consider whether a statement by the employer or company and a distinction between the employee's views and the employer or company's position could be made to avoid reputational damage.