The Court of Appeal has delivered a landmark judgment in the case of Higgs v Farmor’s School, a case which highlights the difficult balance between employees’ rights to express their beliefs and employers’ responsibilities to maintain a respectful and inclusive workplace.
Background
Kristie Higgs, a school pastoral administrator, was dismissed for gross misconduct following a complaint from a parent about comments she had posted on Facebook, objecting to teaching of LGBTQ issues in schools. Her posts included references to “brainwashing” children and the parent's complaint described them as homophobic and transphobic. Although the Employment Tribunal dismissed her claim for discrimination because of a protected belief, the Employment Appeal Tribunal ruled that the Employment Tribunal had applied the law incorrectly. It set out guidance on how belief discrimination claims based on expression of belief should be handled.
The law relating to belief discrimination has become very complex (reflected in the EAT judgment), because the tribunals and appeal courts have interpreted the Equality Act in light of European human rights case about religious belief. In particular, this means that, where the claim relates to the manifestation/expression of a religious belief, the Employment Tribunal must apply a proportionality test even in cases of direct discrimination (where there would usually be no defence of justification).
Both sides appealed to the Court of Appeal, with various third parties (including campaign groups) also intervening in the case.
Court of Appeal
The Court of Appeal ruled that the Employment Appeal Tribunal had interpreted the law correctly. In cases concerned with the expression of a belief, if the belief has been expressed in an objectionable way, then a dismissal or other disciplinary action will not be discriminatory if the employer can show that it was a proportionate response.
However, it held that dismissal in this case was not even close to being a proportionate response - something employers may find surprising in light of the language which Ms Higgs used in her posts. The Court emphasised that while her posts used intemperate language, they did not directly attack the LGBTQ community or incite hatred. The Court also noted that there was no evidence suggesting Ms Higgs was unfit to work at the school, where she had been employed for six years without prior complaints, and that the risk of reputational damage was speculative, given that the posts were clearly personal, under her maiden name, and did not purport to express the school's views.
Key takeaways
Employers should be wary of relying on reputational damage as a basis for dismissing or disciplining staff who express protected beliefs in potentially objectionable ways. The case emphasises that the bar is set high for employers seeking to justify such action as proportionate.
However, this leaves employers with a very unsatisfactory dilemma. The range of beliefs protected under the Equality Act is broad and includes beliefs that some staff will find inherently offensive and upsetting, such as anti-Zionist and gender-critical views (both of which have been upheld as protected beliefs). In many cases, the employees most likely to be upset by such views will also have relevant protected characteristics, and may have potential claims for harassment if those views are expressed in the workplace. In these cases, there will be no risk-free option for an employer - they could well face litigation from either (or both) parties. The Court of Appeal has not given any specific guidance on how employers should approach these “conflicts of rights” cases and this may be an impossibly thin line to tread.
While employers will need to factor in the risk of litigation, in many cases they will ultimately be guided more by values and practical issues of workforce management than by legal risk - since there is no way of eliminating the risk. Some employers will err on the side of an inclusive and harmonious workplace, even if that means facing litigation - others will want to champion freedom of expression for employees, even if that means dealing with the fallout from time to time. In an increasingly febrile political climate, it looks likely that these issues will continue to be played out in the Employment Tribunals and courts.
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