In the recent case of Higgs v Farmor’s School the Court of Appeal has confirmed that it is possible for employers to defeat a claim for direct discrimination on the basis of religion or belief where a) the reason for the allegedly discriminatory act is not the belief itself but the way in which that belief was manifested and b) the employer’s actions were objectively proportionate.
While this sounds like good news for employers, the judgment also makes clear that the bar for showing that sanctions are objectively proportionate is high. Organisations may also find it difficult to balance the needs and views of different groups of employees. Recent case law has emphasised the importance of free speech and the fact that there is no right not to be offended. That being said, in certain circumstances, the expression of divisive views could create an ‘offensive, hostile or degrading’ environment for the purposes of anti-harassment provisions.
Background
Mrs Higgs was a pastoral assistant at Farmor’s School (the School). She was subject to suspension, disciplinary action and, ultimately, summary dismissal for gross misconduct after a complaint was received regarding two Facebook posts she had made on her private account. In both cases she had re-posted material that criticised the teaching in schools of information on (among other things) same sex relationships and gender fluidity. The complainant was concerned that the fact that Mrs Higgs had reposted this material demonstrated that she held homophobic and transphobic views and that this posed a risk to pupils in her care. The School’s decision to dismiss was based largely on concerns about the damage that the offending posts could cause to its reputation.
Mrs Higgs claimed direct discrimination on the ground of religion or belief. Broadly, she relied on a lack of belief in gender fluidity or that someone could change their biological sex or gender (known as ‘gender critical’ beliefs), a belief in marriage as a union between a man and a woman and not persons of the same sex/gender and a belief that she should witness to biblical truth. It was accepted that these beliefs were protected under the Equality Act.
Although it was critical of the language used in the re-posted material and found it to be offensive, the Court of Appeal held that, in the circumstances, dismissal was a disproportionate sanction and so ending Mrs Higgs’ employment had been directly discriminatory.
Key Points
The key points for employers arising from the judgment are:
- Taking action against an employee because they have expressed a protected belief will be directly discriminatory unless that action was a proportionate response to something objectionable in the way in which that belief was expressed. Although there is nothing in the Equality Act that allows this distinction to be made, this interpretation is in line with the position under the European Convention on Human Rights which places limits on the manifestation of protected beliefs that conflicts with the rights of others. This also echoes the approach taken in other areas of employment law. In a recent whistleblowing case it was found to be fair to dismiss an employee who had unlawfully hacked their employer’s computer system in order to collect the material needed for their disclosure, notwithstanding that the disclosure would otherwise have been protected. In essence, employees cannot behave badly and get away with it, no matter what their motives.
- Although this is clearly helpful to employers in one sense, the court also emphasised the need for their actions to be proportional. There was no evidence that the reputational damage the school feared had actually occurred (beyond a single complaint) and the school accepted that Mrs Higgs had not discriminated against and would not discriminate against gay or transgender pupils. The language of the posts was not so offensive as to override Mrs Higg’s right to express her beliefs and was not, the Court found, intended to incite hatred. It was also helpful to her that the reposts were on a private Facebook account with no obvious link to the School- had she expressed the same views at, for example, a staff meeting the outcome of the claim may have been different.
- Mrs Higgs had also claimed that the taking of disciplinary action was an act of discrimination, here the Court disagreed and said that the School was right to have investigated the complaint given Mrs Higg’s role and the nature of the material, although it questioned the need to suspend her while the investigation was taking place.
- Employers should take care not to make stereotypical assumptions – the fact that Mrs Higgs held gender-critical beliefs and had a ‘traditional’ view of marriage did not necessarily mean that she would discriminate against gay or transgender pupils. In addition, when assessing offensive or potentially offensive comments employers should look at what was actually said and not read in the least favourable interpretation.
- Finally, if employers are seeking to rely on reputational damage when imposing sanctions they should ensure that there is clear evidence of damage that is sufficient to justify the sanction imposed. Here the Court said that the fact that a third party may think less of the School for employing Mrs Higgs was not enough to justify dismissing her.
Comment
This case emphasises the difficulty that employers face where employees, often for deeply held reasons, express opinions that others find offensive. It demonstrates again that these issues should be considered on a case by case basis and employers should take care not to rush to imposing the most extreme sanctions without definitive evidence of harm.
Frances Rollin