An employment tribunal has found that whilst a Christian employee's beliefs that sex and gender are set at birth and cannot be changed were protected beliefs under the Equality Act 2010, her dismissal was not a consequence of her expressing those beliefs.
Dismissal For Gross Misconduct
Mrs Higgs is a Christian who was employed by Farmor's School as a pastoral administrator and work experience manager. An anonymous complaint was made to the headteacher regarding Facebook posts shared by Mrs Higgs. Two posts were brought to the school's attention. The first was a reposting of an article relating to the teaching in schools of same-sex relationships, same-sex marriage and gender being a matter of choice to which Ms Higgs added, "Please read this! They are brainwashing our children!" and an appeal to sign a petition.
The second was a reposting of an article which referred to gender fluidity as a "perverted vision" and that "the LGBT crowd with the assistance of the progressive school systems are destroying the minds of normal children by promoting mental illness."
As a result of these posts, Mrs Higgs was dismissed on the grounds of gross misconduct for breaching the school's conduct policy. Ms Higgs brought a tribunal claim against the school alleging that she had been directly discriminated against and harassed on the grounds of her religious beliefs.
Was Mrs Higgs Discriminated Against?
The tribunal unanimously found that Mrs Higgs' beliefs that gender cannot be fluid and that someone cannot change their biological sex or gender were protected beliefs under the Equality Act 2010. However, Mrs Higgs' treatment by the school did not amount to discrimination or harassment because of those beliefs.
The tribunal found that Mrs Higgs had been dismissed because of the way she manifested her beliefs. In the Tribunal's view, her Facebook posts may reasonably have lead people to conclude that she was homophobic or transphobic and such views had the potential to negatively impact people associated with the school and the wider community.
It is understood that Mrs Higgs intends to appeal this first instance decision. Therefore, further guidance in this area can be expected in the future.
The Balance of Rights
This case illustrates how there is scope for conflict between the protected characteristics of religion or belief and sexual orientation. Some religious groups have strong views about homosexuality and gender issues.
Whilst employers must not discriminate against employees for holding certain religious beliefs, that does not mean that those employees are free to express views that may amount to discrimination against others. Having carefully considered policies, for example conduct and equalities policies, will assist employers in navigating this difficult area.
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