Employment Appeal Tribunal
The Employment Appeal Tribunal has upheld an appeal against the employment tribunal’s decision that a Christian employee of a secondary school was not discriminated against after being dismissed following Facebook posts which were perceived as anti-LGBT+. In reaching its conclusion, the EAT set out detailed guidance on how to determine whether action taken in these circumstances is proportionate, an assessment the employment tribunal had failed to apply.

Following the prominent judgments in the claims brought by Maya Forstater and David Mackereth, the EAT decision in Higgs v. Farmor’s School again broaches the challenging issue of clashing views in the workplace, and specifically gender critical/religious beliefs and LGBT+ rights. The polarised nature of this issue was even highlighted in the course of this litigation, when an EAT lay member was recused for apparent bias after tweets opposing gender critical views and related campaigning activities came to light.

Upholding employees’ rights to hold a religion and belief and the right of free speech when faced with the expression of views that are considered by many to be objectionable continues to be challenging for employers. We previously wrote about the EAT’s decision in the Forstater case and the fine distinction drawn between direct discrimination (which is unlawful) and indirect discrimination (which can be justified). In this case the court provided more practical guidance on how employers should approach these difficult balancing exercises, which will come as welcome clarification.

 

ET finds employer acted because of perception of unacceptable views

Mrs Higgs worked as a pastoral administrator and work experience manager for the Respondent, Farmor’s School. In 2018, the Head Teacher of the school received an email complaining about a post Mrs Higgs had made on Facebook in which she stated, “They are brainwashing our children!” in relation to LGBT+-focused teaching in schools, including around “same sex relationships, same sex marriage and gender being ‘a matter of choice’”. Upon further investigation, it was found that Mrs Higgs had also described an article referring to gender fluidity as a “perverted vision”.

Following a disciplinary process arising from this complaint, Mrs Higgs was dismissed for gross misconduct. She brought claims of direct discrimination and harassment on the grounds of a number of beliefs relating to LGBT+ and religious issues (although not directly because of her Christianity). These beliefs included a “belief in marriage as a divinely instituted life-long union between one man and one woman” and a “lack of belief that someone could change their biological sex/gender”.

The tribunal originally rejected her claims of discrimination, on the grounds that there was not a sufficiently strong nexus between the views she held and the specific wording of the Facebook posts, finding that the school’s treatment had arisen from the latter and its conclusion that the language used may lead someone to believe that Mrs Higgs held homophobic or transphobic views. Mrs Higgs appealed this decision.

Appeal successful

The EAT upheld Mrs Higgs’ appeal on the grounds that the tribunal had failed to properly consider whether the school’s actions were because of, or related to, Mrs Higgs manifesting her beliefs. Specifically, the tribunal had not properly assessed the nexus between the Facebook posts and Mrs Higgs’ protected beliefs. Considering this question, the EAT decided that there was in fact a close or direct nexus between the posts and her underlying beliefs. This conclusion meant that it was necessary to carry out a proportionality assessment of the school’s decision to dismiss Mrs Higgs and that interference with her fundamental rights.

The EAT noted the essential nature of individuals’ rights to freedom of belief and expression (under the European Convention of Human Rights). These rights are, however, “qualified”. This means that they may be limited to the extent necessary in pursuit of a legitimate aim – including, for example, preventing discrimination against others on grounds of their LGBT+ identity. This EAT judgment does not mean that Mrs Higgs’ underlying discrimination claim has been successful. The case will now return to the tribunal, which will consider whether or not her claim succeeds, based on the proportionality assessment the EAT referred to.
 

Assessing proportionality

The EAT also set out some helpful pointers regarding what factors will be taken into account in assessing the proportionality of any interference with the right to freedom of belief and expression.

Noting that each case will be fact-specific, the EAT indicated that the following factors are likely to be relevant to this assessment:

  • The interference in the expression of a protected belief should always be done in the least intrusive way possible to achieve the objective in question.
  • The content, tone and extent of the statement or action in question are relevant.
  • The likely audience of the statement or action should be considered.
  • An employer should consider whether the employee has stated that the views expressed are their personal views, or whether they may present a reputational risk to the organisation.
  • The nature of the employer’s business and whether the statement or action in question may impact its ability to run that business are relevant.

Social media and expectations of privacy

Another point for employers and employees alike to take from this case, is that the tribunal stated that anyone posting on Facebook like Mrs Higgs did “effectively loses control of their posts” and thus has no “real expectation of privacy” in relation to content posted in this way. This was not appealed, so the EAT did not add any further guidance on this point, but we expect that this topic will continue to be a focus in the digital age.

How should employers tackle these situations?

The EAT’s proportionality guidance is particularly helpful for employers faced with issues of balancing “conflicting” views in the workplace. While each case will be fact-specific (and caution is recommended), these factors provide a helpful starting point for employers faced with, for example, gender critical views expressed in a way which is causing offence to other employees, but which nevertheless may themselves be protected under the Equality Act 2010. This is an increasingly common scenario employers face and is often complicated by an expectation of “zero tolerance” to such views from the wider workforce.

Putting this into practice, our top tips for employers for employers approaching these issues are:

  • Avoid knee-jerk reactions. Although it can be tempting to take a strident approach, the cases make clear that employers will need to look at each case on its facts. Employers should ensure they follow their internal policies and carefully consider whether any action they propose to take is fair and proportionate, based on the facts of the situation rather than any differences of view between employees / organisational values.
  • Don’t just listen to the voices that shout the loudest. These issues can become heated and emotional. It’s important that employers take a step back and bear in mind the principles set out above, as well as their own internal values and approach to DE&I.
  • Pin your organisational colours to the mast. Like the cases that have come before, this judgment does not mean that employers can’t take a clear stance on LGBT+ inclusion. In fact, it’s all the more important for employers to make their support for the LGBT+ communities clear, including in the wording of internal policies, networks documents, and statements of purpose. This can help to bolster a decision to take action against the inappropriate expression of views that contradict organisational values.

Higgs v. Farmor’s School and another – judgment available here.

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