Discrimination and manifestation of beliefs: Higgs v Farmor’s School and others

The Court of Appeal handed down its judgment in the long anticipated case of Higgs v Farmor’s School and others: Court of Appeal Judgment. Kristie Higgs, a pastoral administration and work-experience manager, was dismissed following a complaint in relation to Facebook posts which the complainant perceived as homophobic and transphobic. 

Higgs brought claims in the Employment Tribunal for discrimination on the grounds of religion or belief. At first instance the Employment Tribunal (“ET”) dismissed Higgs’ claims of direct discrimination and harassment for religious or philosophical beliefs, finding that the school’s actions were not because of (or related to) a protected characteristic, but rather due to concerns that her social media posts could be perceived as homophobic or transphobic bringing the school into disrepute. 

Higgs appealed that decision to the Employment Appeal Tribunal (“EAT”) on the grounds that the ET had failed to properly consider whether her social media posts were a manifestation of her beliefs, and consequently whether the school’s actions in dismissing her were proportionate. The Employment Appeal Tribunal found that the ET failed to adequately engage with whether there was a “sufficiently close or direct nexus” between the posts and beliefs, and remitted the case back to the Employment Tribunal for reconsideration and a proportionality assessment. The EAT did, however give some general guidance as to what approach an employer should take into account when assessing the proportionality of interference with the right to freedom of belief and expression of belief. 

Both parties appealed the EAT decision to the Court of Appeal. 

The Court of Appeal Judgment

The Court of Appeal found that the EAT erred in requiring the case to be remitted back to ET; the EAT should have concluded that the decision to dismiss the Claimant constituted unlawful discrimination on the ground of religion or belief. However, the Court of Appeal found that EAT was correct to conclude that if a dismissal is motivated by something objectionable in the way in which an employee manifests their religion or belief, the decision will only be lawful if the employer can show it was a proportionate response, or can be objectively justified. 

In this case, the school sought to justify Higgs’ dismissal on the basis that the social media posts were liable to damage its reputation in the community. However, only one parent reported the posts, and the Court of Appeal found that “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”. 

Key points for employers

Employers should not take away from the judgment that employees have a green light to make offensive comments on social media by relying on their religious or philosophical beliefs.  Employers still have responsibilities to prevent unlawful discrimination and harassment and should not shy away from taking appropriate action where an employee makes offensive posts that relate to particular protected characteristics. 

The key takeaway for employers is that when addressing claims involving what may be deemed as offensive social media posts they should:

1. Proceed with caution when undertaking investigations into social media posts unconnected to the employment. Employers need to remember that the right to freedom of religion or belief and expression of those beliefs is fundamental whether those beliefs are popular or mainstream. Therefore dismissing an employee merely because they have expressed a protected belief will almost certainly be discriminatory;
2. To the extent that the beliefs held by the employee are protected but the manner in which that belief was expressed was objectionable, any action or response taken must be proportionate and capable of being objectively justified. That will always be context specific.

We are experienced in supporting employers to navigate through complex and sensitive employee relations issues involving religion and belief issues. If you would like further information, please contact a member of the Employment, Pensions & Immigration department who will be happy to help.