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Tag: Higgs v Farmors School

Was a Christian employee discriminated against when she was dismissed for  Facebook posts which were perceived as anti-LGBT?

Possibly, says the EAT in Higgs v Farmor’s School (available here). It depends on whether the employer’s response was proportionate to the manifestation of the employee’s beliefs (in this case the Facebook posts). The case was returned to the Tribunal to decide.

Facts: Mrs Higgs is a Christian who holds gender critical beliefs including the belief that  marriage is reserved for a union between a man and a woman. Mrs Higgs worked as a pastoral administrator and work experience manager in a secondary school. The school received a complaint from a parent that Mrs Higgs had posted comments on Facebook that were critical of teaching in primary schools about same-sex marriage and gender being a matter of choice and not biology. Following an investigation and disciplinary hearing, she was dismissed for gross misconduct (on the basis that she held ‘illegal and discriminatory views’ and that her posts were evidence of harassment against members of the LGBT community).

Mrs Higgs brought Tribunal claims for discrimination and harassment on grounds of religion or belief.

Tribunal decision

The Tribunal said that although her beliefs were protected, she was not discriminated against or harassed because of them. It found that Mrs Higgs had demonstrated (or ‘manifested’) the beliefs she held in such a way that someone reading her comments might reasonably consider that she held homophobic or transphobic views, and it was fair to dismiss her on this basis.

Mrs Higgs appealed to the EAT.

EAT decision

The EAT said the Tribunal had not approached making its decision in the right way. It therefore sent the case back for reconsideration.

The EAT noted that protection for an employee’s belief is not limited just to holding it.  They are also protected if they express (or ‘manifest’) those beliefs in a lawful manner. Therefore disciplinary action or dismissal can still be unlawful discrimination if it is connected to the lawful manifestation of a protected belief.

The Tribunal needed to decide if:

  1. There was a close or direct nexus between Mrs Higgs’ Facebook posts and her underlying beliefs. (Which the EAT considered there was).
  2. The school’s treatment of Mrs Higgs was because of, or related to, the Facebook posts (which was the way in which she manifested her beliefs).
  3. Mrs Higgs had expressed her belief in such an objectionable way that it justified the school’s actions.

To decide on the final point, the Tribunal would need to carry out a ‘proportionality assessment’. This involves balancing the severity of its actions against the importance of its objective and an individual’s right to express their protected beliefs, even if unpopular.

Although the EAT was not keen on laying down general guidelines for ‘manifestation’ cases (as there is no “one size fits all” approach) it did provide some pointers as to the type of factors that might be taken into account in a proportionality assessment, including:

  • The content, tone and extent of the manifestation
  • The likely audience
  • The extent and nature of the intrusion on the rights of others
  • The likely impact on the employer’s ability to run its business
  • Whether the employee made it clear that the views were personal (or whether they might be seen as representing the views of the employer)
  • Any wider reputational risk
  • The nature of the employer’s business, in particular where there is a potential impact on vulnerable service users or clients; and
  • Whether the limitation imposed (or action taken) against the employee is the least intrusive measure open to the employer.

Implications: This is a helpful decision from the EAT. Its pointers on proportionality will be a particularly useful starting point for employers faced with the tricky task of responding to the expression of unpopular beliefs – especially where, as in this case, there is an expectation from the wider workforce of ‘zero tolerance’.

The upshot is that employers need to take a measured approach in such situations. Resist a knee-jerk reaction to side with those wanting a zero tolerant approach and carefully consider what would be a proportional response. Engage with the person expressing their belief and take time to understand the reasons why, and how, they are manifesting it before weighing this up against other employees’ and the organisations values and stance.

If after carrying out this balancing act (or ‘proportionality assessment’) you decide that the employee is expressing their views in a objectionable way (and you can justify this view), then you will have the right to take action against them.


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