The Court of Appeal has held in the case of Higgs v Farmor’s school and others that the dismissal of an employee for posting on social medial in relation to her beliefs on gender fluidity and the nature of sex education teaching, particularly in primary schools, was not objectively justified and amounted to unlawful discrimination.

The case involved the Claimant who was employed by the Respondent secondary school for six years, as a pastoral administrator and work experience manager. A parent at the school complained that the Claimant, who was a Christian, had expressed “homophobic and prejudiced views” on her Facebook page.  Her views were concerned with two beliefs: that gender is binary and not fluid and that same sex marriage cannot be equated with traditional marriage.  Her concern was that it was wrong to teach anything different to children and particularly primary school children.   Following an investigation the Claimant was dismissed summarily for gross misconduct. She brought a claim to the Employment Tribunal in relation to discrimination and harassment on the ground of religion or belief.  The Employment Tribunal dismissed her claims, holding that the reason for the dismissal was not the beliefs but rather that, as a result of her actions she may reasonably be perceived as holding beliefs that would not qualify for protections within the Equality Act 2010. Her appeal to the Employment Appeal Tribunal was successful and the claim was remitted to the ET.   The EAT held that the ET had failed to consider that, where the treatment complained of was in response to the manifestation of a protected belief, the question whether that manifestation was the reason for the treatment involved the application of a test of objective justification corresponding to that in article 9 and article 10 of the Convention of Human Rights.  The Employment Tribunal had failed to undertake that proportionality assessment.  The Claimant appealed to the Court of Appeal that they should not have remitted her claim to the ET but should have gone further and upheld her claim. 

The Court of Appeal allowed the appeal.  It held that in the opinion of the court the ET would be bound to find that the Claimant’s dismissal was not objectively justified and accordingly that it constituted unlawful discrimination. Although the School was entitled to take objection to the posts on the grounds that their language was gratuitously offensive to gay and/or trans people, the Court believed that the dismissal was unquestionably a disproportionate response.   It considered that the language of the posts was not grossly offensive. In addition, the language was not the claimant’s own.   There was also no evidence that the reputation of the school had been damaged to that point; the school’s concern was about potential damage in the future. In addition, even if readers of the posts might fear that the Claimant would let her views influence her work, neither the panel nor the ET believed that she would do so. There was no reason to doubt the assertion by the Claimant that her concern was specifically about the content of sex education in primary schools, not the school in which she worked.   There was therefore no requirement to order remittal of the dismissal claim to the ET.  It would only be necessary to determine the question of remedy.

However, the court did give the following useful summary of the points to consider

  • The dismissal of an employee merely because they have expressed a religious or other protected belief to which the employer, or a third party with whom it wishes to protect its reputation, objects will constitute unlawful direct discrimination.
  • However, if the dismissal is motivated not simply by the expression of the belief itself (or third parties’ reaction to it) but by something objectionable in the way in which it was expressed, determined objectively, then the dismissal will be lawful if, but only if, the employer shows that it was a proportionate response to the objectionable feature.
  • The effect of the decision in Page v NHS Trust Development Authority modifies the usual approach under the Equality Act so as to conform with that required by the European Convention of Human Rights.
  • In this case, the Claimant, who was employed in a secondary school, had posted messages, of a gender critical nature.  It was not in dispute, following the earlier decision of the EAT in Forstater v GCD Europe, that these beliefs are protected by the Equality Act.
  • The school sought to justify her dismissal on the basis that the posts in question were expressed in such a way and included insulting references which were liable to damage the school’s reputation. However, neither the language of the posts nor the risk of reputational damage were capable of justifying the Claimant’s dismissal in circumstances where she had not said anything of the kind at work or displayed any discriminatory attitudes in her treatment of pupils.

The decision highlights the difficulties for employers in balancing competing philosophical and religious beliefs.  It is important for the tribunal to consider whether the employer’s actions are related to the manifestation of the belief or are a justified objection to the manner of that manifestation.  In this case the school had failed to show that the actions were justified, particularly in light of the fact that the employee had expressed her views in a private social media account with no link to the workplace.