Higgs v Farmor’s School: Dismissal for social media posts was unlawful discrimination

The Court of Appeal recently delivered its long awaited judgment in the case of Higgs v Farmor’s School, a case that has been in dispute since 2019 and has significant impact on the law on direct discrimination.

Higgs v Farmor’s School: Case background

Kristie Higgs, a Christian, worked for the respondent, Farmor’s School, as a pastoral administrator and work experience manager. She was dismissed in January 2019 for gross misconduct, after a parent reported her to the school for reposting posts on social media expressing views on gender identity and same sex relationships being taught to school pupils (not at the school she worked at). The parent complained that Higgs had expressed ‘homophobic and prejudiced views’. The claimant appealed against the decision to dismiss her but her appeal was unsuccessful.

It was noted during the investigation stage, that there was no evidence that the claimant had ever expressed her views about gender fluidity or same-sex marriage to pupils or staff at the respondent school, or that she had treated gay, lesbian or transgender pupils or staff differently. However, it concluded that there was a potential risk to the school’s reputation.

The claim

Higgs brought claims in the Employment Tribunal for direct discrimination and harassment on the ground of religion or belief. She claimed she held a number of beliefs which had resulted in her dismissal, including a lack of belief in same-sex marriage and a lack of belief in gender fluidity.

The Tribunal accepted her beliefs fell within the protection of the Equality Act 2010, but concluded that she had not been directly discriminated against because of those beliefs. It held that her dismissal had been because, as a result of the social media posts, she might reasonably be perceived as holding homophobic and transphobic beliefs, which would not qualify for protection of the Equality Act 2010.

Higgs appealed to the EAT, which upheld her appeal and remitted the case back to the Tribunal to consider the proportionality of the school’s decision. A further appeal was then made to the Court of Appeal.

Decision

The appeal was allowed by the Court of Appeal. It held that the decision to dismiss Higgs was unlawful discrimination on the grounds of religion or belief.

In reaching this decision, it held that the decision to dismiss was a disproportionate response, on the basis that:

• The language used in the posts was not “grossly offensive” and was not the claimant’s own (she had re-posted the content)
• There was no evidence that the school’s reputation had been damaged
• Neither the panel nor the Tribunal believed that the claimant would allow her views to influence her work.

The Court held that the dismissal of an employee merely because they have expressed a religious belief to which the employer (or a third party to whom it wishes to protect its reputation) objects, will amount to unlawful discrimination in accordance with the Equality Act 2010. However, if the dismissal is motivated by something objectionable in the way in which the belief is expressed, then the dismissal will be lawful provided it can be objectively justified. In other words, that the dismissal (or taking disciplinary action) was a proportionate response to the objectional way the employee expressed their belief.

In the circumstances of this case, it was held not to be proportionate to dismiss Higgs for the way in which she had expressed her protected beliefs.

Where does this leave employers?

This case highlights the very delicate balance for employers between protecting the rights of employees who hold protected beliefs against those who may object to them, particularly in an age when people are increasingly expressing their views online and in wider social forums.

This decision confirms that, in practice, it may be difficult for an employer to dismiss employees for expressing their beliefs in a way that the employer finds objectionable, or which it fears may damage its reputation. Each case will depend on its own unique facts and employers will need to carefully analyse and assess the risks before taking disciplinary action.

Further guidance and support

For advice on discrimination and dismissals in the education sector, the Brachers Education team can assist.

Our employment law solicitors are based in Maidstone and Canterbury and are ready to help with any legal advice you may require so please get in touch today.

This content is correct at time of publication