In the recent decision of Higgs v Farmor's School, the Employment Appeal Tribunal (EAT) found that employers cannot decide to discipline or dismiss an employee for manifesting a protected belief on the basis that someone else might be offended. Doing so risks discrimination unless an employer has also considered whether the action is both necessary and proportionate.
Mrs Higgs was a school employee who posted comments on Facebook about a government consultation on relationship and sex education in primary schools. These posts concerned her protected gender critical and Christian views. A parent considered that the posts were homophobic or prejudiced and complained to the head of school. Mrs Higgs was then asked about the posts and denied she was homophobic and/or transphobic. She made it clear that she did not regret the posts.
Mrs Higgs took the view that her posts did not compromise her work at the school, including with LGBT children, and that she did not treat the children differently nor bring her views to the school. However, the investigation found that her posts showed she held 'illegal and discriminatory views' and Mrs Higgs was later dismissed for gross misconduct with a finding that her posts were evidence of harassment.
Mrs Higgs brought a claim for direct discrimination and harassment in the tribunal relying on her lack of belief in either gender fluidity – that someone could change gender – or same sex marriage, as well as her belief in marriage as being between a man and a woman. She claimed that she had a belief in the literal truth of the Bible and Genesis 1:27 which provides that God created man in his own image, and man as male and woman as female.
These beliefs were accepted as protected religious and philosophical beliefs. At first instance, the employment tribunal (ET) held that Mrs Higgs had manifested the beliefs she held in such a way as to lead people to consider that she might have homophobic or transphobic views. The tribunal decided that dismissal for this reason was not unlawful discrimination.
The EAT on appeal held that the ET had not considered the nexus between the Facebook posts and Mrs Higgs' protected beliefs. The EAT noted that protection for belief is not limited to merely holding the belief without the ability to express those beliefs. The protection also covers the lawful manifestation of the beliefs. If the suspension, disciplinary action and dismissal were connected to the manifestation of a protected belief, this could therefore be unlawful discrimination, unless Mrs Higgs had manifested her beliefs in such a way that her employer could justifiably object.
Mrs Higgs' (and others') rights to freedom of expression meant that any restriction on how the beliefs were expressed must still be proportionate, even if her employer thought Mrs Higgs' views may offend or shock others. While any objective justification of a restriction is always dependent on context and employment-specific, the ET in this case had not made findings of fact as to whether in this case the limitations on expressing the beliefs were justified. This means the case has gone back to the original ET for reconsideration.
In reaching this finding, the EAT also set out some more general principles to help both employees and employers navigate difficult areas and competing rights, taking into account the protections afforded to the right to freedom of expression. When these issues arise employers should consider:
- the nature of the employment relationship;
- the content and tone of what was said;
- who the likely audience is or was;
- whether the views intrude on others' rights;
- the likely impact on the employer's business;
- whether the employee or worker made it clear the views were personal;
- any wider reputational risk; and
- any power imbalance between the employee or worker and their employer.
Any restriction should always be the least intrusive measure open to the employer. In this case there were vulnerable people involved, as Mrs Higgs worked at a school and so interacted with children. This may be significant when it goes back to the ET.
It is not clear whether the guidance from the ET will be used as an exhaustive list of factors to consider in future, but it is now ignored at an employer's peril.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.