Background
Kristie Higgs was employed as a pastoral administrator and work experience manager at Farmor’s School in Gloucestershire. In October 2018, a parent lodged a complaint regarding posts made on Higgs' personal Facebook account. These posts, critical of government policies on sex education and gender identity, were alleged to be homophobic and prejudiced. Following an investigation, Higgs was suspended and subsequently dismissed for gross misconduct in January 2019.
Legal issues
Higgs pursued a claim of direct discrimination and harassment under the Equality Act 2010, arguing that her dismissal was due to her protected beliefs, including her Christian faith and views on gender and marriage. It is, for now, established as a general rule that so-called “gender critical” beliefs amount to “protected beliefs” for the purposes of equality law, and the EAT did not revisit this issue.
The Employment Tribunal (ET) ruled against the Claimant, but the Employment Appeal Tribunal (EAT) overturned this, remitting key issues back for reconsideration. The Claimant appealed against the remission to the ET, arguing that the EAT should instead have made a finding of direct discrimination as this was the only outcome available to it (or the ET on remission).
The Court of Appeal confirmed that an employee’s dismissal based solely on expressing a religious or philosophical belief, even if controversial, constitutes unlawful discrimination. However, if an employer can justify the dismissal on the basis that the manner of expression was inappropriate and dismissal was proportionate in the circumstances, it may be lawful.
Court of Appeal findings
The Court of Appeal found in the Claimant’s favour, ruling that the school’s decision to dismiss her was discriminatory and could not be justified under equality law.
Lord Justice Underhill summarised the key legal principles at paragraph 175 of the judgment:
- Dismissing an employee solely because they express a religious or protected belief constitutes direct discrimination under the Equality Act 2010 and cannot be justified.
- However, if the manner in which the belief is expressed is deemed offensive or harmful, the employer may lawfully dismiss the employee if, and only if, the decision was both a proportionate response and objectively justified.
- This approach aligns UK equality law with the European Convention on Human Rights, which protects freedom of expression and religious belief.
Lack of justification for dismissal
The school argued that the claimant’s Facebook posts were intemperate, included insulting references to advocates of gender fluidity, and risked damaging the school’s reputation.
These posts included comments criticising the fact that Government policy was such that “children will be taught that all relationships are equally valid and ‘normal’, so that same sex marriage is exactly the same as traditional marriage”, describing this as “brainwashing”, as well as anti-trans comments including references to a “perverted vision of gender fluidity,” discussion of trans rights with children as “child abuse” and promotion of “mental illness”. Some of these comments were "reposted” by the Claimant only, such that she did not draft the original text. The Court of Appeal placed some emphasis on the fact that the Claimant was not the original author of the post.
A complaint was made by a parent. The school feared that other parents might see the posts and that this would damage the school’s reputation.
However, the Court of Appeal ruled that these factors did not justify her dismissal, particularly because:
- The Claimant had never expressed such views at work.
- There was no evidence that she had discriminated against or mistreated any pupils.
- The posts, while critical of government policy, were not extreme or abusive enough to warrant dismissal.
Key takeaways
- Freedom of expression: This case reinforces that employees have the right to hold and express religious or philosophical beliefs outside the workplace, provided they do not interfere with their professional duties.
- Disciplinary action & justification: Employers must carefully assess whether disciplinary action is justified, particularly where a dismissal may amount to discrimination.
- Reputational risk vs. protected beliefs: While employers may consider reputational risk, they must ensure that actions taken are proportionate and do not unlawfully infringe on employees’ rights.
Comment
As the court noted, there is no right not to be offended, and the offence taken by the audience (the so-called ‘heckler’s veto’) can never justify interference with Convention rights – which are particularly important in the case of ‘political speech’ such as this. To do otherwise would have an unacceptable chilling effect.
It is also to be noted that, as a result of several authorities such as Forstater v GCD Europe UKEAT/0105/20, [2022] ICR 1, the Court of Appeal accepted that so-called gender-critical views amount to “beliefs worthy of protection in a democratic society” and thus “protected beliefs” for Equality Act 2010 purposes. In this case, the Court of Appeal has further cemented the judiciary’s protection of freedom of expression within the trans debate by endorsing the distinction between expressing LGBT-critical beliefs and expressing “animus” towards LGBT people (with the claimant’s comments falling into the former category), and downplaying comments drawing comparisons between trans inclusivity and “child abuse” and “mental illness” as mere “rhetorical exaggeration” that is “not likely to be taken literally”. This is despite language equating trans liberation with abuse/illness appearing to become increasingly widespread in the UK and beyond.
From an employment law perspective, this case underscores the importance of clear and well understood workplace policies on social media use and free expression, particularly the expression of views that are likely to be controversial or engage the rights of others.
