A recent Court of Appeal (CA) decision has significant implications for how employers react when they have concerns about how an employee has manifested their personal beliefs outside work.
The case deals with complicated legal issues around whether the manifestation of a belief is protected in the same way as the belief itself. If so, then you could never treat someone less favourably for that manifestation of belief since you cannot objectively justify direct discrimination (other than for age). If the manifestation of belief is to be treated differently from the belief underpinning it, then when and how might you be able to justify less favourable treatment due to the way a belief is manifested?
The drafting of the Equality Act does not currently address this, so the courts needed to consider how this should work in practice.
Here, the CA held that the school directly discriminated against one of its teachers, Ms Kristie Higgs, by dismissing her for social media posts related to her gender-critical and same-sex marriage beliefs. Interestingly, they did so by carrying out a balancing exercise factoring in how closely the manifestation of belief was connected to the belief itself and whether the school’s reaction was proportionate and justifiable in the circumstances.
Background
Ms Higgs had worked for Farmor’s School for six years as a pastoral administrator and work experience manager at the time of her dismissal. She helped troublesome and vulnerable pupils who had to be taken out of their normal classes after disrupting lessons. In October 2018, she re-posted screenshots on social media expressing concern that primary school children were being taught about same-sex marriage and that gender is a matter of choice during lessons. The screenshots that Ms Higgs re-posted also said that schools were brainwashing children by normalising these viewpoints.
Ms Higgs is a Christian and her post included a link to a petition started by an organisation that aims to uphold the “rights of parents to have children educated in line with their religious beliefs”.
A parent of one of the school’s pupils saw her post and complained to the Head Teacher and, following a disciplinary process, the school dismissed Ms Higgs for gross misconduct. The disciplinary panel concluded that she had breached the school’s code of conduct, although no one had raised concerns about her conduct at work, and that there was a potential risk of harm to the school’s reputation. Ms Higgs worked at the secondary school but had been sharing a concern about primary school teaching.
Employment tribunal decision
Ms Higgs brought a claim in the Employment Tribunal (ET) alleging that she had been directly discriminated against and harassed by Farmor’s School because of her beliefs, which included a lack of belief in gender fluidity, lack of belief that someone could change their biological sex or gender, and a lack of belief in same-sex marriage. The ET accepted that Ms Higgs’ beliefs were protected under the Equality Act 2010.
The question for the ET was whether the school had treated Ms Higgs less favourably than others because of her beliefs regarding gender and same-sex marriage. The ET held that the school dismissed Ms Higgs due to the way she expressed her beliefs, rather than the beliefs themselves. The ET found that Ms Higgs’ post used provocative language that could be interpreted as discriminatory against the LGBTQ+ community. Accordingly, and within the context that Ms Higgs worked with vulnerable students, the ET decided that the school dismissed her due to reputational damage and student welfare concerns, and not because of her protected beliefs. Ms Higgs then appealed to the Employment Appeal Tribunal (EAT).
EAT decision
The EAT held that the ET had not engaged with the question of whether there was a “sufficiently close or direct link” between Ms Higgs’ beliefs and her social media posts, such that it should regard her posts as a manifestation of her beliefs. It had also failed to consider whether the school was motivated by Ms Higgs’ beliefs or perception that her manifestation of those beliefs in the social media posts was objectionable. The EAT remitted the case for the ET to reconsider and to carry out a proportionality assessment, balancing Ms Higgs’ rights to freedom of belief and freedom of expression against the school’s decision to dismiss.
CA decision
Ms Higgs appealed to the CA, arguing that the EAT should have upheld her claims rather than remitting them to the ET.
The CA held that the EAT was correct in its conclusion that the ET should have carried out a proportionality assessment. If it had done so, the CA held that the ET would be bound to find that the school had not objectively justified Ms Higgs’ dismissal and so had unlawfully discriminated against her.
The CA assumed, but did not decide, that the school was entitled to object to Ms Higgs’ posts because of the offensive language used and the possible relevance to her work. However, it gave several reasons for its conclusion that dismissal was not a proportionate response:
- The language was not grossly offensive and did not appear to be intended to incite hatred.
- The language was largely not Ms Higgs’ own, but rather re-posted messages of others.
- There was no evidence that the posts had damaged the school’s reputation. Any such damage would only take the form of the fear expressed by the original complainant, that Ms Higgs would express trans and homophobic views at work. However, the risk of that belief becoming widespread, and thereby actually damaging the school’s reputation, was speculative, given Ms Higgs made the posts on her personal social media account, which was in her maiden name, and she had not referred to the school.
- Even if readers of the post might fear that Ms Higgs would express trans and homophobic views at work, the disciplinary panel (and the ET) did not believe she would do so.
The CA held that the school was entitled to investigate in some way the complaint it received and indeed indicated that it would have been irresponsible not to ascertain whether there was a risk of Ms Higgs bringing the issues raised in her post into school, or her beliefs affecting her treatment of gay or trans children, or whether there was a risk of serious reputational damage.
The CA’s decision is significant because it introduces an objective justification test into direct discrimination cases, where the case relates to something objectionable about the way an individual has manifested their protected belief. In these situations, dismissal will only be lawful if it is a proportionate response.
Takeaways
Following this decision, employers face a higher hurdle if they seek to dismiss an employee for manifesting their beliefs in a way the employer believes is objectionable. Without evidence of potential reputational damage, and particularly where the employee manifests their beliefs outside the workplace, dismissal is less likely to be proportionate. Employers will have a firmer basis for taking action if there is evidence that the employee’s views might influence the way in which they do their job. If, like Ms Higgs, they indicate that they are prepared to leave their beliefs at the workplace door, then even a disciplinary warning may be disproportionate.
This decision may embolden some employees in the way they express their beliefs and the likelihood of employees’ beliefs clashing in the workplace is only likely to increase. It will be ever-more important to emphasise the need for respectful conduct in the workplace. This is particularly so as we enter a time where people hold a range of diverse beliefs and are more vocal about sharing them on social media.
If you have any questions or require assistance relating to your policies and training on preventing discrimination and harassment in the workplace, please get in touch with your usual Dentons contact.
