The UK Court of Appeal (CA) has handed down its judgment in the case of Higgs v. Famor’s School, adding to the growing body of case law that examines the complex issue of balancing employees’ freedom to express potentially controversial beliefs alongside the rights of other employees and the business’ interests.

Background

Mrs. Higgs was employed by Farmor’s School as a pastoral administrator and work experience manager. She was dismissed following an investigation into complaints from a parent about Facebook posts and re-posts, where she criticised the teaching of same-sex relationships and gender in schools. The parent described the posts as "offensive'" and containing "homophobic and prejudiced views against the lgbt community."

Mrs. Higgs subsequently brought claims for harassment and direct discrimination. She alleged that she suffered discrimination and harassment because of various beliefs, including a belief in marriage as a divinely instituted life-long union between one man and one woman and a lack of belief in (i) gender fluidity, (ii) that someone could change their biological sex or gender, or (iii) same-sex marriage.

Employment Tribunal (ET) and Employment Appeal Tribunal (EAT) decisions

The ET held that Mrs. Higg’s beliefs were protected under the Equality Act (referring to Forstater and Mackereth) but dismissed her claims, finding that her employment was terminated because the school was concerned about possible reputational damage due to her posts being seen as homophobic and transphobic – not because of her beliefs.

Mrs. Higgs appealed to the EAT. Her appeal was upheld on the grounds that the ET (1) failed to engage with the question of whether the actions of Farmor’s Schools were because of, or related to, the manifestation of her beliefs, and (2) should have considered whether there was a sufficiently close or direct nexus between her protected beliefs and her Facebook posts.

The EAT remitted the case to the ET for further determination and Mrs. Higgs appealed to the CA on the ground that judgment should have been given in her favour without the need for a further ET hearing.

CA decision

The CA allowed Mrs. Higgs’ appeal and substituted a finding that Mrs. Higgs' dismissal constituted unlawful direct discrimination on the ground of religion or belief.

In relation to the dismissal decision, the CA surmised that:

• The dismissal of an employee because they have expressed a religious or other protected belief to which an employer (or a third party to whom the employer wants to protect its reputation) objects will constitute unlawful discrimination.

• However, if the dismissal is motivated by something objectionable in the way in which the belief is expressed (determined objectively), then the dismissal will be lawful if the employer can show it was a proportionate response to the objectionable feature. In short, it will be lawful if the dismissal can be objectively justified.

• In considering the second point above, the CA found that while Farmor’s School was entitled to object to the posts (because of the offensive language and the relevance of sex education in schools to Mrs. Higgs’ role), dismissal was a disproportionate response.

• Key factors in this evaluation were that (i) the posts were not ‘grossly’ offensive, (ii) the objectionable language was not Mrs. Higgs’ own words (she had re-posted quotes) and this would be clear to others, (iii) there was no evidence of reputational damage (it was just speculative) and (iv) there had never been any complaints about Mrs. Higgs’ treatment of pupils in her role.

On the issue of reputational damage:

• The CA held that employers do not have carte blanche to interfere with an employee's freedom to express their beliefs simply because others find those beliefs offensive and may judge the employer negatively for hiring them. Employees do, however, not have carte blanche regarding what they can say publicly, how they say it, or the circumstances in which they express it.

• It also identified three potentially relevant considerations in this respect, being (1) the subject matter and whether it has anything to do with the employer’s business; (2) the way in which the beliefs are expressed, noting that the threshold of offensiveness should be high; and (3) whether it is clear the views are personal to the employee.

• In this case, the CA found that reputational damage may be relied on in principle but noted that Mrs. Higgs’ posts were on her personal Facebook account (unrelated to the school) and would likely only be seen by a small number of people.

The CA also cautioned against making stereotypical assumptions about the extent of the employee’s beliefs and cited the UK Equality and Human Rights Commission’s example of not equating gender-critical beliefs with transphobia.

Key takeaways

This decision is a reminder of the challenges that employers face in managing the rights and freedoms of all individuals in the workplace. In particular, it underlines the importance of considering the full context of these types of cases carefully before deciding what disciplinary action (if any) to take.

When faced with a comparable situation, employers are entitled to carry out investigations and should continue to keep in mind their obligations to take appropriate steps to prevent discrimination and harassment in the workplace. However, in making any decisions, employers should closely assess exactly what has been said and evaluate the full context to consider how to respond, ensuring any response is proportionate.