Gender critical social media posts by school employees

The recent case of Higgs v Farmor’s School considered social media posts by school employees, in this case by Mrs Higgs who was employed as a pastoral administrator and work experience manager by Farmor’s School. The Employment Appeal Tribunal failed to conduct proportionality assessment re gender critical Facebook posts by a school employee.

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 has 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 was “inflammatory and quite extreme “), the complainant had taken offence, which was “ clear evidence of discrimination … in the form of harassment “, and that 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 ET hearing the case dismissed all of Mrs Higgs’ claims. It considered she had not been directly discriminated against or harassed because of her protected beliefs. Instead the ET considered she had been dismissed because, as a result of the language used in her Facebook posts, she might reasonably be perceived as holding homophobic and transphobic beliefs. The ET concluded that the “causal nexus between the protected characteristic and the actions of the [respondent] “ was not made out; the treatment had not “related to “ the relevant beliefs.

Mrs Higgs appealed to the Employment Appeal Tribunal.

Employment Appeal Tribunal decision

The EAT allowed Mrs Higg’s appeal and reversed the ET decision. It held that the ET had failed to adequately follow earlier case law as set out in the important European Court of Human Rights decision in Eweida and Others v the United Kingdom together with the Court of Appeal decision in Page v Smith. Under the principles set out in Eweida, it is not only the right to hold the religion or belief in question which is protected but also the right to “manifest” it. This is circumscribed by the decision in Page which held that an employer will not have discriminated if its actions were due to the objectionable way in which the protected belief was manifested, rather than the manifestation of the belief itself.

The EAT found that the ET had failed to adequately engage with this question and, to the extent it did so, this was through the “prism” of the school’s view of the Claimant’s posts. In order to determine whether or not the manifestation could properly be said to be “objectionable “, the ET should have carried out a proportionality assessment which assessed whether the school’s actions were prescribed by law and necessary for the protection of the rights and freedoms of others.

The EAT stated:

“… in carrying out that assessment, the ET needed to first recognise the essential nature of the claimant’s right to freedom of belief and to the freedom to express that belief (a recognition that must carry with it an understanding of the foundational nature of those rights for any democracy…

… The problem with the ET’s approach is that it by-passed any engagement with the nature of the claimant’s rights, and failed to carry out the requisite balancing exercise, when seeking to determine whether the mental processes which caused the respondent to act did not involve the claimant’s beliefs but only their objectionable manifestation.”

The EAT therefore remitted the case for the proportionality question to be considered again at first instance.

The EAT also gave helpful guidance on the principles to consider when conducting a proportionality assessment. It noted that the starting point would always be the foundational importance of the right, but that this is qualified where necessary to protect the freedoms of others. Each case will always be context-specific but it will be helpful to consider the objective the employer is seeking to achieve, if it could be achieved less intrusively, the tone used by the employee and whether the employee has made clear their opinions are personal as opposed to representing the employer.

Closing comment

Dealing with social media posts by employees continues to be a minefield for schools, especially where they concern contentious educational topics being debated in society at large. This case shows the importance of not leaping to conclusions but carrying out a full analysis of each situation with a proper proportionality assessment. Any restrictions placed on the important rights of freedom of religion and freedom of speech should only be to the extent necessary to protect the rights and freedoms of others and should be as unintrusive as possible.