The Court of Appeal has ruled in Higgs v Farmor's School that a Christian teacher, dismissed for Facebook posts criticising sex education and, in particular, the teaching of "gender fluidity" in schools was directly discriminated against based on her religion or belief.
Protection under the Equality Act 2010 (EqA 2010)
As a quick reminder, religious or philosophical beliefs are protected under EqA 2010 if they meet the Grainger criteria (developed from the case Grainger plc and others v Nicholson).
Fulfilling the Grainger criteria
For a belief to qualify for protection it has to fulfil the five criteria set out in Grainger i.e., it has to be genuinely held; be a belief and not an opinion or viewpoint; be a belief as to a weighty and substantial aspect of human life and behaviour, and attain a certain level of cogency, seriousness, cohesion and importance; and finally, be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.
Gender critical beliefs
Following the Employment Appeal Tribunal's (EAT's) decision in Forstater v CGD Europe and others it is generally accepted that gender critical beliefs qualify for protection under the EqA 2010.
In Forstater the EAT held that only beliefs such as pursuing totalitarianism, advocating Nazism, or espousing violence and hatred would fail to satisfy the Grainger criteria. Beliefs which are offensive, shocking or even disturbing to others can still be protected, and Ms Forstater's gender-critical beliefs, which were widely shared in society (including by some trans persons) did not seek to destroy the rights of trans persons and so were protected under the EqA 2010.
Higgs and the expression of beliefs
The employment tribunal rejected Mrs Higgs's claims for direct discrimination and harassment. Although her beliefs were protected, it said she was dismissed due to her perceived homophobic and transphobic views, not her beliefs. She appealed to the EAT.
The EAT found that the employment tribunal failed to consider whether the school's action was because of, or related to, the manifestation of Mrs Higgs's beliefs. The school should also have considered whether there was a sufficiently close or direct connection between her protected beliefs and her Facebook posts. It remitted the case to the employment tribunal, but Mrs Higgs appealed to the Court of Appeal on the basis that the EAT should have gone further and held for itself that her claim had succeeded.
The Court of Appeal upheld her appeal; it found the EAT was wrong to order remittal of the claim. It concluded that Mrs Higgs's dismissal was unlawful discrimination on the ground of religion or belief.
The Court of Appeal determined that dismissing an employee for expressing a religious or other protected belief to which the employer or a third party objects, constitutes direct discrimination. In this case, the dismissal was based on a parent's complaint to the head teacher about Mrs Higgs' Facebook posts which were perceived as homophobic and prejudiced against the LGBT community.
The Court of Appeal clarified that if the dismissal is not motivated by the expression of the belief, but rather due to manner in which it was expressed, then it will be lawful but only if the employer can show that it is objectively justified.
Here the school tried to justify the dismissal because of the "florid and provocative" language used (the language used was not actually Mrs Higgs', but that of the messages that she reposted) which could damage the school's reputation in the community, but this was not substantiated with evidence. The Court of Appeal found no evidence that Mrs Higgs's Facebook posts affected her professional conduct or her treatment of students. She did not display discriminatory attitudes towards her pupils, and her concerns were specifically about the content of sex education, not about treating gay or trans students differently.
The Court of Appeal concluded that dismissal was not a proportionate sanction for Mrs Higgs's conduct. It acknowledged reposting the material was unwise given her association with the school, but this did not justify her dismissal, particularly given her long service and lack of prior complaints about her work.
Don't make stereotypical assumptions
The Court of Appeal accepted, on an obiter basis, some submissions from the Equality and Human Rights Commission (EHRC) that where an employer relies on unlawful stereotyping of an employee's beliefs, for example, assuming someone with gender critical views is transphobic, the treatment will be because of the protected characteristic.
Decision-makers must avoid letting stereotypes namely, that persons who hold or manifest a particular belief will share attributes of a group which they might not in fact possess, influence their actions, whether consciously or unconsciously.
Practical points for employers
- Gender critical beliefs are protected under the EqA 2010, but it won't always be the case that the manifestation of such beliefs will be protected.
- Evidence is required to justify disciplinary actions, including dismissal based on reputational damage.
- If there is evidence that the employee's views will impact on their work, then it's more likely that disciplinary action/dismissal will be proportionate and objectively justified.
- Avoid stereotypical assumptions about employees' belief when making decisions about whether to discipline.
- Clearly communicate that discriminatory views on work-related social media is unacceptable and grounds for disciplinary action.
- Ensure inclusivity and protection from harassment for all workers, including those with gender critical views.
