Court of Appeal Landmark Case: Discrimination and expressing beliefs on social media
In the much anticipated judgment in Higgs v Farmor’s School, the Court of Appeal has found that the claimant was subjected to unlawful discrimination for expressing controversial beliefs on social media.
Facts of the Higgs v Farmor’s School case
Mrs Higgs, the claimant and a practising Christian, was employed as a pastoral administrator and work experience manager at Farmor’s School. The claimant was suspended and eventually dismissed for gross misconduct, following a complaint from a student’s parent that the claimant had reposted material that expressed “homophobic and prejudiced” views on her Facebook page. The claimant internally appealed the decision but was unsuccessful.
ET decision
The claimant brought claims for direct discrimination and harassment in the Employment Tribunal on the basis of the beliefs expressed in the Facebook posts, including beliefs that gender is binary and that same-sex marriage cannot be equated with marriage between a man and a woman, and a lack of belief in ‘gender fluidity’, as well as disagreement with sex and relationship education for primary school children.
Both claims were dismissed by the ET, who found that the dismissal was not because of the claimant’s protected beliefs, but because the way that she had expressed those beliefs, and the language used in the posts, may be perceived as showing that she had homophobic and transphobic views, which could damage the school’s reputation.
The claimant appealed to the Employment Appeal Tribunal.
EAT decision
The claimant’s appeal was allowed on the basis that the ET had failed to consider whether her social media activity had been an expression of her protected beliefs and, if so, whether the expression of those beliefs was objectively objectionable so that dismissal was a proportionate response to the way that she had expressed those beliefs. However, the EAT remitted the claim back to the ET to determine whether the school’s actions were objectively justified.
Both parties appealed the EAT decision.
Court of Appeal decision
The Court of Appeal allowed the claimant’s appeal, finding that the dismissal was unlawfully discriminatory on the grounds of religion or belief, and concluded that it had been wrong for the EAT to refer the case back to the ET.
The Court concluded that the dismissal was “unquestionably a disproportionate response” for the following reasons:
- the language used, even if it passed the threshold of objectionability, was not “grossly offensive”
- the language used was not the claimant’s own as these were reposted posts
- there was no evidence that the school’s reputation had been damaged. The post had been posted on the claimant’s personal Facebook page and had been reported by only one parent. The school had also accepted that there was no possibility that readers of the posts would believe that they represented the school’s views
- no complaints had been made about the claimant over the six years she had worked at the school. If the school thought necessary, they could have issued a statement to parents making clear that the claimant’s views would not affect her attitude towards gay and transgender pupils or parents
The Court concluded that although “it was no doubt unwise” for the claimant to post the content on social media, they did not believe that dismissal “was even arguably a proportionate sanction” for the claimant’s conduct.
Although there were also comments made about the claimant’s lack of insight, the Court cautioned against inappropriate weight on lack of insight.
Comments
This case reinforces the dangers of dismissing an employee who has expressed controversial religious or other protected beliefs, and the need to balance the implications of such actions with the rights of the employee not to be subject to unlawful discrimination.
Employers should therefore consider cases such as these very carefully, taking legal advice where possible, and avoiding ‘kneejerk’ reactions. Employers should only take disciplinary action in response to the expression of protected, albeit controversial, beliefs and views, whether expressed inside or outside of the workplace, when it is justified and proportionate to do so in the specific circumstances. There will often be less discriminatory alternatives to dismissal in limiting perceived reputational risk.
Contact us
Robyn Ackerman is a solicitor in our employment team. If you have any questions or concerns relating to the issues in this article, or need legal advice, get in touch with us today.