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We updated you earlier this year here that we were awaiting the Court of Appeal’s decision in this important case (see here).
The Court of Appeal’s has now pubished its decision (here) which confirms that the employee was discriminated against. This overturns the Tribunal’s decision and the EAT’s decision to send the case back to the Tribunal for reconsideration (see our September 2023 Newsletter here).
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 for her employer, 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 found that that Mrs Higgs’ belief was a protected philosophical belief, but that she was not discriminated against because of it. She was not dismissed because of her protected beliefs, but due to the manner in which she expressed these on social media.
Mrs Higgs appealed.
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:
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:
Ms Higgs appealed to the Court of Appeal arguing that the EAT should have upheld her claims and not returned the case to Tribunal. Various bodies, including the EHRC, were granted leave to intervene in the appeal.
Court of Appeal decision
The Court of Appeal said that the EAT was wrong to return the case back to the Tribunal.
It instead upheld Mrs Higgs’ appeal and substituted a finding that her dismissal amounted to unlawful discrimination based on her protected philosophical beliefs.
However, the Court agreed with the EAT’s finding that if a dismissal is based on concerns about how an employee expresses their religion or belief, it will be fair so long as the employer can demonstrate it was a proportionate response, or can objectively justify the decision.
That said, the decision to dismiss Mrs Higgs was disproportionate. Particularly given her long service and that there had been no complaint of any kind about her actual work.
The employer’s justification for Mrs Higgs’ dismissal (based on potential reputational harm from her social media posts) was insufficient. There was no evidence that the reputation of the school had been damaged. Only one parent had complained and Mrs Higgs had not displayed similar views at work or treated pupils unfairly or in a discriminatory manner. The Court accepted that Mrs Higgs would not have let her views interfere with her work.
While it was no doubt unwise of Mrs Higgs to re-post material expressed in provocative language (particularly in circumstances where people were liable to realise her connection with the school), the language was not grossly offensive and it was not Mrs Higg’s own (some were re-posts of messages from the US). Also Mrs Higgs did not agree with some of the language used. For example, she said that she would not have used the terms ‘brainwashing’ or ‘delusional and psychotic thinking’. While the court found that this did not absolve her of responsibility, it considered it to be a relevant factor.
Implications:
This case sets an important precedent on how social media conduct outside of work can impact employment. To date employers have often relied on reputational risk as a reason for dismissal – but the Court of Appeal has now made it clear that the threshold for this is high. There needs to be evidence of reputational harm to the employer and the conduct needs to be sufficiently objectionable. In this case offensive language was not not enough.
This makes it harder to take action against employees for comments made on their personal social media accounts. A strict ‘zero tolerance’ policy towards any offensive statements linked to protected beliefs will likely lead to legal risks.
In summary, when protected beliefs clash, employers need to carefully assess the situation, conduct a fair investigation, and ensure any disciplinary action is reasonable. Important factors include whether the comments were made at work or outside of it, whether the remarks were truly offensive, and whether the risk of reputational damage is genuine.
Disciplinary action may be easier to justify if:
Keep in mind that employees are entitled to hold and express views that others may find offensive, and this does not warrant immediate disciplinary action or even dismissal. Do not assume that an employee will discriminate against others because of the views they express and carry out a careful and fact-specific analysis in each case to establish whether the test for harassment under the Equality Act 2010 has been met.
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