The Court of Appeal has upheld a Christian employee’s appeal that she was directly discriminated against on the ground of her religion or belief in relation to her dismissal for gender critical Facebook posts.
Background to the case
The school’s headteacher received an email from a parent which complained about a Facebook post made by Mrs Higgs. In the post Mrs Higgs has reposted another post and added “Please read this! They are brainwashing our children!” together with an exhortation to sign a petition. The subject matter concerned the government consultation on relationships education and those aspects relating to teaching about same-sex relationships, same-sex marriage and gender being a matter of choice. The parent complaining considered the post demonstrated that Mrs Higgs held homophobic and prejudiced views against the LGBT community.
A disciplinary investigation and hearing followed and Mrs Higgs was dismissed for gross misconduct, a decision which was upheld on appeal. The school accepted that Mrs Higgs had not committed any misconduct in relation to her roles at the school, but considered that the school’s Code of Conduct had been breached as a result of the Facebook posts (the language of which they considered “inflammatory and quite extreme “); the complainant had taken offence which the school said was “ clear evidence of discrimination … in the form of harassment “;and the school was concerned there was a potential risk of harm to the respondent’s reputation.
Mrs Higgs brought claims in the Employment Tribunal (“ET”) of direct discrimination and harassment on the grounds of religion or belief. She relied on seven separate beliefs including a lack of belief in gender fluidity, lack of belief that a person can change their biological sex, belief in marriage as a divinely instituted life-long union between one man and one woman and opposition to sex and relationship education for primary school children. These beliefs were all accepted as falling within the scope of the Equality Act 2010 (“EqA 2010”) by the ET.
The initial Employment Tribunal (“ET”) hearing the case dismissed Mrs Higgs’ claims but this was reversed by the Employment Appeal Tribunal (“EAT”) which held that the ET had failed to carry out a proportionality assessment of whether or not the posts were truly objectionable. The EAT therefore remitted the proportionality question to be considered again at first instance.
Mrs Higgs appealed to the Court of Appeal that the EAT should have upheld her claims for direct discrimination and harassment rather than remitting them to the tribunal.
Court of Appeal decision
The Court of Appeal agreed with Mrs Higgs and allowed her appeal. The Court held that, if remitted, the tribunal would be bound to find that Mrs Higgs’ dismissal was not objectively justified and was discriminatory. The school was entitled to object to the posts because they could be considered offensive, and because the context of sex education in schools was relevant to Mrs Higgs’ work. However, Underhill LJ considered that “dismissal was unquestionably a disproportionate response” because:
- Mrs Higgs’ posts were not grossly offensive. Even if the language of the re-posts passed the threshold of objectionability, it was not grossly offensive.
- The language to which the school objected was not Mrs Higgs’ own (other than her repetition of the word “brainwashing”). It appeared in messages from others which, as would be evident to the reader, she had re-posted. Mrs Higgs made clear to the school that she did not agree with the language used. While that did not absolve her from responsibility for re-posting it, it was relevant to the question of the degree of any culpability.
- There was no evidence that the reputation of the school was damaged; its concern was about potential future reputational damage. As they also accepted that there was no possibility that readers of Mrs Higgs’ posts would believe that they represented the school’s views, any reputational damage would only take the form of the fear expressed by the original complainant: that Mrs Higgs would express homophobic and transphobic attitudes at work. While the Court accepted that the school’s reputation in the community could have been harmed had that belief become widespread, the risk was speculative at best. The posts were made from Mrs Higgs’ personal Facebook account, in her maiden name and with no reference to the school.
- There was no evidence that Mrs Higgs would let her views influence her work at the school. There had been no complaints about any aspect of her work for the previous six years. There was no reason to doubt her assertion that her concern was specifically about the content of sex education in primary schools and that she would never treat gay or trans pupils differently. The school could have issued a statement, if it had really thought it necessary, making it clear that it was confident that there was no risk that Mrs Higgs’ views would affect her attitude towards gay or trans pupils or parents.
Although it was unnecessary to decide this ground of Mrs Higgs’ appeal, the Court also accepted the Equality and Human Rights Commission’s submissions on the dangers of stereotyping. A decision significantly influenced, consciously or unconsciously, by unlawful stereotyping of an employee’s beliefs – such as that persons holding gender critical beliefs are transphobic or that objecting to same-sex sexual activity means animus towards gay persons – will be discriminatory.
Importance of the case
This is an extremely important case for schools which continue to be on the frontline of contentious educational topics being debated in society at large. It shows that schools must be careful to act proportionately when addressing social media posts made by employees. Disciplinary action will not be justified simply because a statement is offensive to some; the threshold of offence is a high one. It is also relevant whether social media statements are made in a personal capacity and the extent to which it might be reasonable to impute them to the school. The risk of reputational damage must be tangible rather than merely speculative. The Court also helpfully flagged the risks of conscious or unconscious stereotyping of certain beliefs which can constitute direct discrimination.
