How to navigate employees expressing controversial beliefs

So, let’s look at the facts

Mrs Higgs is a Christian who believes in the literal truth of the Bible and does not believe in gender fluidity or same sex marriage. She was employed by Farmor’s School (“the School”) for six years as a pastoral administrator and work experience manager, so she had direct contact with both students and parents on a daily basis.

Mrs Higgs was suspended pending investigation after the School received a single complaint from a parent about her online activity.  The parent claimed that it looked like Mrs Higgs had expressed homophobic and transphobic views in various Facebook posts.  In particular, Mrs Higgs had shared a petition opposing the government’s policy on sex and relationships education in schools, stating that children were being “brainwashed”.  Although Mrs Higgs’ Facebook page was set to private, used her maiden name and in no way linked her to the school, she was dismissed for gross misconduct and her subsequent internal appeal was denied.

Mrs Higgs brought claims of harassment and direct discrimination against the School arguing that she was dismissed due to her gender-critical beliefs which are protected under the Equality Act 2010.

Employment Tribunal Decision

While the Employment Tribunal (ET) agreed that Mrs Higgs did hold beliefs protected under the Equality Act, they concluded that she was not dismissed because of those beliefs.

Rather, she was dismissed because of the way she had manifested the beliefs, and due to concerns about the reputational damage that the “florid and provocative language” in her posts could cause to the School.  It was held that she could reasonably be perceived as holding homophobic and transphobic views which are not protected, and so her dismissal did not amount to discrimination or harassment.

Mrs Higgs appealed to the Employment Appeal Tribunal (EAT).

Employment Appeal Tribunal Decision

The EAT relied on the decision in Page v NHS Trust Development Authority and ultimately found that the ET had failed to properly consider the proportionality of dismissal against Mrs Higgs’ rights to freedom of belief and freedom of expression.

The case was remitted back to the ET for them to review the case again.  However, in an unusual step, Mrs Higgs appealed the decision to remit the case back to the ET.  She thought the EAT should have decided the case without the need for a further hearing.

Court of Appeal Decision

Now in the Court of Appeal (CA), Mrs Higgs was successful.  The CA agreed that Mrs Higgs should have been given a decision in the EAT.  Although the CA usually only gives Judgments based on points of law, the CA decided in this case to take matters into its own hands and to make a decision based on the facts of Mrs Higgs’ case.

They affirmed that gender-critical beliefs, such as those expressed by Mrs Higgs on her Facebook account, are protected under the Equality Act and the expression, or ‘manifestation’, of those beliefs are safeguarded by the European Convention on Human Rights (ECHR).

The CA did agree with the EAT that it was correct to consider the proportionality of the dismissal following Page but this must be based on all relevant facts.

During the School’s investigation, Mrs Higgs had stated that she did not hold homophobic or transphobic beliefs and the School’s dismissal panel had accepted that.  The CA therefore thought her dismissal was clearly disproportionate.  The School’s arguments that the dismissal was proportionate due to possible reputational damage were rejected.  Mrs Higgs had not said anything herself in the Facebook posts that risked bringing the School into disrepute as they were clearly not a representation of the School’s views.

While the CA acknowledged that Mrs Higgs’ social media activity was “unwise” given her association with the School, there was no evidence that her views were ever expressed in the workplace or that they impacted her professional conduct.  In fact, Mrs Higgs had never received a single complaint during her six years at the School and there was nothing to suggest that she had ever discriminated against a student or that she would ever do so.  Further, the majority of the content she posted was of other people’s views and not necessarily her own.

Although the CA noted that the posts shared could be perceived as offensive, they were not “grossly offensive”, nor did they amount to hate speech or constitute a direct attack on the LGBTQ+ community.

In light of all this, the CA held that Mrs Higgs’ dismissal was not proportionate to the perceived reputational risk and amounted to unlawful direct discrimination on the grounds of religion or belief.

What does this all mean?

This case emphasises the importance of carefully assessing whether an employee’s personal views affect their work in the education setting when considering disciplinary action and reinforces that gender-critical beliefs are indeed legally protected.  Even in a situation such as this where the employee in question could arguably be expected to represent the School’s values both inside and outside of the workplace, the potential for harm was not enough to justify a fair dismissal.

It is unlikely that an employee can be fairly punished for simply expressing a belief that their employer (or a third party) finds objectionable.  There is no right not to be offended.  Everyone has the right to express their opinions and beliefs until such expression hinders the rights of others.  An employer should be careful not to interfere unless they can prove that their actions are an objectively proportionate response to the facts of the case.  Employers will need to consider how the belief was expressed and whether the content was objectively and clearly offensive, taking into account the tone and extent of the statement or action in question, as well as the intended audience.

Had the facts of this case been a little different, for example, had  Mrs Higgs  used her profile to associate herself with the School in any way or if she had connected with parents and/or students on the platform – the outcome may have been different.  However, it is still not certain that dismissal would have been deemed a proportionate course of action to take as the posts were not entirely representative of Mrs Higgs’ own views, let alone of the School’s.

It is more important than ever that education settings provide clear guidance and training to their employees about what is and is not acceptable in the workplace and how they are expected to conduct themselves as representatives of the organisation.  But it is equally important to remember that it is a balancing act and that employees are legally entitled to hold and express views and opinions that may not be popular, and employers must approach such situations with caution.

The legal bit

This case does throw up a difficult legal issue.  A question that the CA ultimately had to wrestle with was whether the School’s actions in dismissing Mrs Higgs could be justified due to her actions.  However, it is long established in UK law that, leaving aside a narrow exception in relation to age discrimination, direct discrimination (which this claim was) cannot be justified.  It looks very much like the CA have introduced a new legal concept of justification in the case of religion or belief, relating to the manner in which the belief is manifested.  This is a significant leap and will be concerning to many employers in the Education sector where, as in this case, a parent’s complaint resulted in a lengthy (and likely costly) legal battle.  However, this will be the settled legal position for now, because the Supreme Court has recently refused permission to allow this case to be appealed.

If you have any questions or concerns about handling similar situations within your organisation, please contact a member of our team.