The question of how to navigate the expression of protected beliefs in the workplace, particularly where those beliefs may not be universally shared or agreed with by co-workers, remains a hot topic for employers; not least in the context of balancing “gender critical” beliefs and the rights of transgender individuals.  This issue has become all the more difficult to navigate in the era of social media, and the accompanying – ever increasing – blurring of the boundaries between professional and private lives for many.

There have been a spate of employment cases focussing on these issues in recent years; the latest of which is the Court of Appeal’s recent ruling, in Higgs v Farmor’s School, that a Christian teacher’s dismissal, for expressing gender critical views on her personal Facebook account, amounted to unlawful discrimination on grounds of religion or belief.  This is a significant case, not only because it deals with the issues of whether gender critical beliefs are protected, the appropriateness of their expression, and when an employer may be entitled to take disciplinary action in relation to them, but also because it touches on the question of whether it may be reasonable to dismiss an employee because of their social media activity outside of the workplace.

We take a closer look at the case below, and also set out a summary of the key points for employers to bear in mind.

The background facts in Higgs v Farmor’s School

Mrs Higgs, who is Christian, was employed by Farmor’s school as a pastoral administrator, and as part of her role was involved in sex education for students.  She was at the school for 6 years. 

Mrs Higgs does not believe in gender fluidity (i.e. that a person can change their biological sex or gender), nor that marriage between same sex couples is equivalent to marriage between heterosexual couples; she also objects to these principles being taught to children in school. 

In 2018, Mrs Higgs re-posted a petition and a number of related posts, on her personal Facebook page; which criticised a government consultation on the nature of sex education in primary schools and, in particular, the teaching of same sex marriage and gender fluidity to children.  The posts were provocatively and hyperbolically phrased (though not in her own words), using terms such as “they are brainwashing our children”, “deranged educators”, “far-left zealots”, “a form of child abuse”, “the LGBT [sic] crowd”, “progressive school systems”, and “promoting mental illness”.

Mrs Higgs’ Facebook page was in her maiden name and made no mention of the fact that she worked at, or was affiliated with, Farmor’s school in any way.  Only those who were friends with her on Facebook had access to her page.

After seeing the posts, an anonymous individual complained to the Headmaster of Farmor’s School, about Mrs Higgs’ “homophobic and prejudiced views”.  The complainant said that they found the views expressed in the posts to be offensive, and had concerns that Mrs Higgs would “exert influence over vulnerable pupils”.  An investigation was carried out by the school, which found that there was a disciplinary case to answer.

During the disciplinary process, Mrs Higgs said that the posts had been shared out of concerns about what was happening in her son’s primary school (not the school that employed her).  She acknowledged that the language used could be considered to be offensive, but said that she was not against homosexual or transgender people, would not discriminate against them, and would not express her views regarding same sex marriage and gender fluidity at school.  There was no evidence that she had discriminated, or expressed her views at school, and she had an unblemished disciplinary record. 

Following the disciplinary hearing, Mrs Higgs was dismissed without notice, for gross misconduct.  The primary rationale behind the school’s decision was that it was concerned that someone reading the posts might conclude that Mrs Higgs was homophobic and transphobic, and it was worried about the potential damage this may cause to its reputation. 

Mrs Higgs brought claims against the school for direct discrimination and harassment on the grounds of religion or belief (amongst others).  She claimed that her lack of belief in equality of same sex marriage and gender fluidity (which arose as a result of her religion), was protected under the Equality Act 2010 (“EqA”).

The initial Employment Tribunal decision

At first instance, the Employment Tribunal (“ET”) dismissed Mrs Higgs’ claims. Though it found that her beliefs were protected under the EqA, it also found that she had not been dismissed because of those beliefs, but rather because the way in which she had expressed (or “manifested”) them, which was perceived as “florid”,“provocative” and “wholly unacceptable” and was therefore not protected under the EqA.  More specifically, the school’s reason for dismissal was that it believed that a reader of the posts “might reasonably…conclude that she was homophobic and transphobic” and that this “had the potential” to damage its reputation. 

The subsequent Employment Appeal Tribunal decision

Mrs Higgs appealed to the EAT, which upheld her appeal.  It found that there was a sufficiently close and direct connection between her protected beliefs and her conduct, such that the posts constituted clear manifestation of her protected beliefs.  In light of this, the a further assessment should have been undertaken, to determine whether the school’s actions in dismissing Mrs Higgs were either (a) because of the manifestation of her protected beliefs, in which case they would be discriminatory, or (b) because she “had manifested her beliefs in a way to which objection could justifiably be taken”, in which case the school’s actions may be lawful, but only if objectively justifiable and proportionate in the circumstances.

The EAT consequently overturned the ET’s original decision and ordered that the case be remitted and considered afresh.              However, Mrs Higgs appealed to the Court of Appeal, arguing that, rather than remitting the case back to the ET, the EAT should have upheld her claim.  

The Court of Appeal’s decision

The Court of Appeal allowed Mrs Higgs’ appeal.  It concluded that her dismissal, for expressing protected beliefs, constituted unlawful direct discrimination on the grounds of religion or belief.  In reaching that decision, the Court assessed the objective justification and proportionality of the school’s decision to dismiss. 

The school was entitled to take objection to the posts

The Court assumed that the school had been entitled to take objection to Mrs Higgs’ Facebook posts; on the basis that the language used was “gratuitously offensive” to homosexual and/or transgender people, and the fact that it was used in the context of sex education in schools (which was relevant to Mrs Higgs’ work).

However, the school’s response was not objectively justifiable or proportionate

Nonetheless, Mrs Higgs’ dismissal was unquestionably a disproportionate response in the circumstances, for a number of reasons.

The language of the posts was not grossly offensive or aimed at inciting hatred or disgust

While the language used in the posts was objectionable, it was in fact not “grossly offensive”.  It did not appear to be primarily intended to incite hatred or disgust for homosexual or transgender people.  Rather, it was one of a series of derogatory sneers about various different groups.  In addition, though the posts used “stupidly rhetorical exaggeration”, this was not likely to be taken literally by those reading them.  The posts were a long way off from the kinds of direct attacks which could be found in other cases, where the language used had been intended to stir up hatred or violence, destroy the rights and freedoms of others, and promote intolerance and detestation.

The language used was not Mrs Higgs’ own

The language which had been used in the posts was not Mrs Higgs’ own, and she had made clear to the school that she did not agree with it.  Though that did not absolve her of responsibility for re-posting, it was relevant to the question of the degree of any culpability.

There was no evidence of reputational damage for the school

There was no evidence that the reputation of the school had actually been damaged; the school’s concern was about potential damage in the future.  The school had accepted that there was no possibility that readers of the posts would believe that they represented its views.  The risk of widespread circulation was speculative at best – the posts had been made on Mrs Higgs’ personal Facebook account, in her maiden name, to her friends, and with no reference to the school.  By the time of the hearing, only one person was known to have read the posts, recognised who Mrs Higgs was and her affiliation with the school, and complained. 

There was no evidence that Mrs Higgs’ beliefs or their manifestation influenced her work

Even if readers of the posts feared that Mrs Higgs would let her views influence her work, neither the school nor the ET believed that she would do so, and there was no evidence that she had.  There was no reason to doubt her assertions that she “wouldn’t bring this into school” and wouldn’t treat homosexual and/or transgender pupils differently.  Though it had been unwise of Mrs Higgs to re-post material expressed in florid and provocative language that she did not agree with, this did not justify her dismissal; particularly as she was a long-serving employee (of 6 years) against whose actual work there was no complaint of any kind.

Mrs Higgs’ lack of insight did not justify dismissal

Though the school believed that Mrs Higgs had an apparent lack of “insight” into the consequences of her actions (as illustrated by her comments during the disciplinary process that she did not regret making the posts, and her failure to remove them), there was “no universal rule” that a lack of insight will justify an employer choosing dismissal rather than a less severe sanction.  There may be understandable reasons in some cases why an employee may not be willing to admit that the conduct in question was wrong, particularly if it was the manifestation of a deeply held belief.  If the case is not one that would otherwise justify dismissal, it should not necessarily be “marked up in seriousness” because of a failure to acknowledge fault, particularly if (as in this case) the employee would genuinely find it difficult to do so. 

Dismissal was not a proportionate sanction in the circumstances

Mrs Higgs’ dismissal was consequently “not…even arguably a proportionate sanction for her conduct” in the circumstances, and was therefore discriminatory.

Key considerations for employers

Navigating expressions of protected beliefs in the workplace can be challenging for employers.  There is a balance to be struck, between respecting individuals’ right to express their protected beliefs while also protecting the (potentially conflicting) rights of others, and this can be very difficult to achieve.  Though each case will be very dependent on its individual facts, there are some key take-away points from the case law, that employers should bear in mind, which we have set out below.

  • A broad range of beliefs will be protected.   To be protected, a belief must meet the 5 criteria set out in Granger plc v Nicholson [2010] IRLR 4.  This is, in practice, a low threshold.  Case law has established that gender critical views, such as those held by Mrs Higgs, are protected.
  • Even beliefs which may be offensive or shocking to some can be protected.  In the case of Forstater v CGD Europe UKEAT/0105/20, the EAT held that only beliefs akin to Nazism or totalitarianism, which promote violence and hatred in the gravest form, will not be protected.  In Higgs the Court highlighted that the manifestation of a belief can be protected, even if it is offensively expressed.  This accords with the case law on freedom of expression, which is clear that that right necessarily requires the freedom to express opinions that may shock or offend.  However, in Higgs the Court also commented that employees do not have carte blanche regarding what they can say in public or how they say it.  Nothing in that judgment changes the protections for employees not to experience harassment in the workplace. 
  • Both holding a belief and expressing (or manifesting) that belief are protected, unless the manifestation is (objectively) objectionable or inappropriate.  Taking disciplinary action in respect of the expression or manifestation of a protected belief will be discriminatory, unless the employee expresses or manifests their belief in such a way that objection could justifiably be taken (i.e. inappropriately), in which case disciplinary action may be permissible if it is objectively justifiable.  However, this is a relatively high bar to reach.  Employers must also be careful not to fall into the trap of stereotyping, and assuming that employees with particular protected beliefs will manifest them in a specific (inappropriate) way; such stereotyping could amount to unlawful discrimination.
  • Any disciplinary action taken in response to an objectionable or inappropriate manifestation of a protected belief must be objectively justifiable and proportionate in the circumstances.  That means that, in taking disciplinary action, the employer must have a legitimate aim that it is seeking to protect (for example, the legal rights of others), and the action taken must be a proportionate means of achieving that aim (i.e. the least punitive option possible).  In Higgs, the Court confirmed that the school had been entitled to investigate the posts complained of – it would have been irresponsible not to have done so in the circumstances.  However, the ultimate sanction, of dismissal, was not proportionate and therefore could not be objectively justified.  The Court did not comment on whether a lesser penalty – such as a warning – might have been appropriate; though in some cases it may be.
  • Context, and the specific circumstances of each case, will be key.  Considerations to be borne in mind when assessing proportionality will include the subject matter and content of the beliefs expressed (and their relevance to the employer’s business), the way the beliefs are expressed (their tone and extent) and in what forum (including the reach of the likely audience), whether the expression of beliefs can be linked to the employer (and the extent of any reputational risk associated with this), the nature of the role of the individual involved (both their level of seniority and whether their views are likely to influence their work), and the nature of the organisation and its clients or service users (and whether there is evidence of the individual demonstrating concerning behaviour towards third parties).
  • Fear of reputational risk alone is not enough.  Though the issue of reputational risk is one important consideration to bear in mind, it is not the only one.  In Higgs, the Free Speech Union (intervening) expressed concern about “the indiscriminate use of reputational harm as a justification for interference with employees’ freedom to manifest their beliefs”, and the Court went on to find that the school’s justification for dismissal had been based on the fear of of potential reputational harm, rather than evidence of actual reputational harm, and was therefore not objectively justifiable in the circumstances.  Employers should therefore make sure that in cases such as this, the actual reputational risk is assessed, rather than simply taking a view that it is likely.  Concerns about potential reputational damage alone will not justify dismissal, unless proportionate.
  • Knee-jerk reactions should be avoided.  The organisation’s response should be measured, objective and proportionate.  Time should be taken, to reflect, before any action is taken.  If disciplinary action is contemplated, consideration should be given to whether that action is (a) necessary to achieve a legitimate aim (and what that aim is), and (b) proportionate in the circumstances (i.e. whether there is any less punitive action which could be taken instead).
  • Dismissing someone who has expressed a protected belief, because of pressure from third parties who have taken offense, may be discriminatory.  In Higgs, the school dismissed Mrs Higgs as the result of a third-party complaint about the way in which she had expressed her beliefs on her personal Facebook page.  However, in the specific circumstances of the case, the dismissal was not a proportionate response.  The Court commented that employers do not have carte blanche to interfere with an employee’s right to express their beliefs simply because third parties find those beliefs offensive and think worse of the employer for employing them.  Any action taken must be objectively justifiable and proportionate in the circumstances.
  • Care should be taken when contemplating disciplinary action in relation social media posts on personal accounts.  In order for disciplinary action to be reasonable in such circumstances, there will have to be a sufficient link between the posts and the individual’s role, and a direct impact on the organisation and its reputation.  As ever, context will be key. As the Judge in Higgs acknowledged “something that might be unproblematic on a private Facebook page could justify different treatment if communicated in a work setting”, and visa versa.  However, it is important to bear in mind that the Higgs case was about posts made on a social media account with a very limited reach, and in circumstances where there was no suggestion of the views in question being brought into work.  If similar content had been posted on (for example) a work-related social media account, the situation would have been different.
  • Clear policies are crucial.  Employers should have cogent social media, conduct and inclusion and diversity policies in place, that fairly balance freedom of belief and expression with the rights of others and workplace expectations.  These should be clearly communicated to staff and regularly reviewed and updated. 

If your organisation needs further advice on any of the issues outlined in this article, please get in touch and our team of experienced Employment Lawyers would be happy to help.

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The material in this article is provided for guidance and general information only and is not intended to constitute legal or other professional advice upon which you should rely. In particular, the information should not be used as a substitute for a full and proper consultation with a suitably qualified professional. Please do contact the Bates Wells team if you require further information.