In Part 1, we explored the legal framework around social media postings and the manifestation of religious or philosophical beliefs in the workplace, focusing on key cases such as Eweida and Page.
We also looked at the Employment Tribunal and EAT decisions in Higgs v Farmor’s School, which raised important questions about proportionality and the link between protected beliefs and their expression.
In part 2, we examine the Court of Appeal’s judgment in Higgs and outline the practical lessons for employers.
Court of Appeal Judgment
The case reached the English Court of Appeal which confirmed that Mrs Higgs’ lack of belief in gender fluidity, and lack of belief that someone could change their biological sex or gender, were worthy of respect in a democratic society and were capable of protection under the Equality Act 2010 – applicable only to GB (a belief not yet tested in Northern Ireland cases, but likely to be protected in Northern Ireland under the Fair Employment and Treatment Order (NI) 1989 as a political opinion or a philosophical belief, also, here, likely to be regarded as worthy of protection as it is about weighty and substantial aspects of human life and behaviour and worthy of respect in a democratic society). The Court of Appeal allowed Mrs Higgs’ appeal but found that the EAT should not have remitted the matter back to the tribunal. It substituted a finding that Mrs Higgs’ dismissal was unlawful direct discrimination on ground of religion or belief. The court could not determine the claim in relation to the preceding disciplinary process before the dismissal but expected that its remittal would not now be necessary due to its ultimate finding.
The court held further in Mrs Higgs’ case that the dismissal of an employee merely because they have expressed a religious or other protected belief to which the employer, or a third party with whom it wishes to protect its reputation, objects will constitute unlawful direct discrimination within the meaning of the Equality Act.
It further found, “However, if the dismissal is motivated not simply by the expression of the belief itself (or third parties’ reaction to it) but by something objectionable in the way in which it was expressed, determined objectively, then the effect of the decision in Page v NHS Trust Development Authority is that the dismissal will be lawful if, but only if, the employer shows that it was a proportionate response to the objectionable feature”– i.e. if dismissal was objectively justified.
In this case, “The school sought to justify her dismissal on the basis that the posts in question were intemperately expressed and included insulting references to the promoters of gender fluidity and “the LGBT crowd”. which were liable to damage the school’s reputation in the community: the posts had been reported by one parent and might be seen by others. However, neither the language of the posts nor the risk of reputational damage was capable of justifying the Claimant’s dismissal in circumstances where she had not said anything of the kind in work or displayed any discriminatory attitudes in her treatment of pupils.” The school’s actions were not justified under article 9 (‘freedom of thought, conscience and religion’) and article 10, (‘freedom of expression’) the ECHR and consequentially unlawful discrimination under the Equality Act 2010.
In summary, going forward, the effect of the Court of Appeal’s decision is that dismissal of an employee to protect an employer’s reputation because they have expressed a protected belief to which the employer or a third party objects, it, may very well amount to unlawful direct discrimination.
In most forms of direct discrimination, there is no defence to an argument of being treated less favourably on ‘protected grounds’ (although there is a justification defence in direct age discrimination cases enshrined in statute in Northern Ireland). In effect, and in line with Page an employer will not be found to have discriminated on ‘protected grounds’ for dismissing an employee if the reason for its actions were not the belief itself but the inappropriate manner in which the belief is manifested and dismissal is an objectively justified and proportionate sanction.
According to the Court of Appeal, the school was entitled to object to the posts because of the offensive language towards gay and Trans people and because the context of sex education in schools was relevant to Mrs Higgs’ work. However, dismissal was “unquestionably a disproportionate response” because of a number of factors including (i) even if they passed the threshold of ‘objectionability’ her posts were not grossly or gratuitously offensive; (ii) the language objected to was not Mrs Higgs’ words ( other than the repetition of ‘brainwashing’). It appeared in messages from others that she had reposted. Mrs Higgs had in fact made it clear to the school that she did not agree with the language used. While that did not absolve her from the responsibility for re-posting it, it was relevant to the question of any culpability; (iii) there was no evidence of actual damage reputation to the school. The disciplinary panel’s main concern was about potential future reputational damage but also accepted by them that there was no possibility that readers of the posts could believe that they represented the school’s views, any reputational damage could only take the form that Mrs Higgs would express homophobic/transphobic attitudes at work. Whilst the court accepted, the school’s reputation in the community could have been harmed had the complainant’s belief become widespread, that risk was regarded as “speculative at best”. The posts were made from Mrs Higgs’ personal account in her maiden name with limited reach and made no reference to the school (iv) there was no evidence that Mrs Higgs’ work would be affected by the views expressed in the posts. She had a six years’ exemplary record of employment and demonstrated no discriminatory behaviour to pupils. There was no reason to doubt her assertion that her concern was specifically about the content of sex education in primary schools and she would not treat gay or Trans pupils differently. If needs be the School could have issued a statement, if it thought necessary, making it clear that there was no risk that Mrs Higgs’ views would affect her attitude towards gay or Trans pupils or parents (vi) there was a strong indication that the tribunal at first instance would have found the dismissal unfair had such a claim been before it. (vii)The lack of insight in the disciplinary process of the offensiveness of the posts on Mrs Higgs’ part in not taking down the posts was irrelevant in this case. While a lack of insight may in certain cases may justify a dismissal over a lesser sanction, there may be cases where there are understandable reasons where an employee will not concede conduct is wrong, particularly where it is the manifestation of strongly held beliefs. The position is different where an employer needs to be confident that an employee understands that what they have done is wrong in order to prevent more serious or damaging occurrence of the same type of conduct in the future. This was not such a case.
Disciplinary process
The Court accepted that the school was entitled to investigate the complaint. However, it was debatable whether that investigation needed to be disciplinary in nature and whether it was necessary to suspend Mrs Higgs and whether the school was justified in finding a case to answer at the end of The court considered that Mrs Higgs’ case on those elements of her claim would need to be remitted to the tribunal. However, it “would strongly discourage that course”. The real complaint concerned Mrs Higgs’ dismissal, and any points of principle were decided in the context of that claim.
The ‘Takeaways’ for employers from the CA Judgement in Higgs
Avoid ‘zero tolerance’ or knee jerk reactions to trigger disciplinary procedures following ‘unacceptable’ social media postings by staff.
Holding a belief and the manifestation of that belief are treated differently at law and this applies to direct discrimination. Direct discrimination based on religion or belief, particularly manifestation of same may therefore be objectively justified. This puts religion and belief in a different category to the other characteristics which are protected including sex, sexual orientation and gender reassignment. The usual approach is that direct discrimination is not capable of justification.
In religion or belief cases, dismissing an employee just because they hold or express a protected belief may amount unlawful direct discrimination. However, dismissing an employee because of something objectionable in the way they express the belief is potentially justified. The question is whether this is a justified proportionate response.
The court recognised that this conclusion modifies the usual approach under the Equality Act 2010. Although not yet ruled upon in Northern Ireland. tribunals here are likely to be heavily persuaded on FETO matters by the above decisions, particularly in Higgs which brings UK law in line with the approach required by the European Convention of Human Rights.
A third article summarising implications for employers arising from the cases of McDade and Higgs will appear shortly.
This article has been produced for general information purposes and further advice should be sought from a professional advisor. Please contact our Employment team at Cleaver Fulton Rankin for further advice.
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