Facts
Farmor's School ("the School") is a secondary school and at the relevant time Kristie Higgs ("the Claimant") had been employed by the School for six years, latterly as a pastoral administrator and work experience manager. She was responsible for overseeing students who had been removed from class for disruptive behaviour. The Claimant is a Christian and has two children, the elder of whom was a pupil at the School.
In October 2018 a parent at the School emailed the head teacher complaining that the Claimant had expressed "homophobic and prejudiced views against the lgbt community" on her personal Facebook page. The post was a repost with a link to a petition and words added by the Claimant stating "PLEASE READ THIS! THEY ARE BRAINWASHING OUR CHILDREN!" The post related to opposing the teaching in schools of same-sex marriage and gender being a matter of choice rather than biology. The main text was not drafted by the Claimant but cut-and-pasted from another source. The account was in her maiden name (rather than the married name the Claimant used for her work at the School) and contained nothing which suggested any connection with the School. However, the Claimant was clearly identified by the complainant who knew that she worked with children "in isolation".
There were additional screenshots sent to the School whereby the Claimant re-posted messages from campaigners in the U.S.A. objecting to materials used in schools there.
The Claimant was suspended. An investigation and disciplinary took place and the Claimant was summarily dismissed for gross misconduct.
The Claimant brought claims for unlawful discrimination on the grounds of religion or belief contrary to the Equality Act 2010 ("the Act").
The Employment Tribunal ("the Tribunal")
The Tribunal held that the Claimant's beliefs about gender fluidity and same-sex marriage were protected by the Act and, in light of the later Forstater v CGD Europe decision, that conclusion was not disputed by the School. However, the Tribunal found that the Claimant had not been discriminated or harassed because of those beliefs and dismissed the claim.
Employment Appeal Tribunal ("the EAT")
The EAT found that the Tribunal's reasons for dismissing the claim were legally flawed and ordered that the claim be sent back to the Tribunal. The Claimant appealed on the basis that the EAT should have determined the issue itself that she had been unlawfully discriminated against rather than sending the claim back to the Tribunal.
Court of Appeal
The Claimant's appeal was allowed by the Court of Appeal. A finding was made that her dismissal did constitute unlawful discrimination on the grounds of religion or belief.
The Court of Appeal's key reasoning was as follows:
- Dismissing an employee only because they have expressed a religious or other protected belief to which the employer objects (or which it fears will offend a third party with whom it wishes to protect its reputation) will constitute unlawful direct discrimination.
- The dismissal will however be lawful if there is something to which the employer could justifiably object in the way in which the belief was expressed and if it was a proportionate response to the objectionable feature – in short, that it was objectively justified. The Court recognises this approach modifies the usual approach under the Act so as to conform with the approach under the European Convention on Human Rights.
- On the question of justification the School sought to justify the dismissal on the basis that the posts in question were offensively expressed and included insulting reference to the promoters of gender fluidity and "the LGBT crowd". The School saw this as a threat to its reputation in the community.
The Court concluded that the School could not justify the dismissal, finding:
- There was no reason to suppose that the Claimant, who had worked for the School for six years without complaint, had expressed her views at work or that they would lead her to treat gay or trans pupils differently.
- With regard to the language used in the posts, it was found to be rhetorical and provocative, however it did not express hatred or disgust for gay or trans people. The Claimant had made clear to the School that she did not agree with the language used, a relevant factor when considering the degree of culpability. The Claimant herself said that she was endorsing the content of the messages rather than their language.
- The reputational risk was slight given the posts were in the Claimant's maiden name, there was limited access to the Claimant's Facebook account and no reference to the School. The risk of widespread circulation was speculative at best.
Comment
The Court of Appeal judgment is the latest in a long line of cases on gender-critical beliefs and same-sex marriages. Employers are in a challenging position of having to balance competing interests in relation to a sensitive subject. A key action point for employers is to ensure that policies and procedures are up-to-date and that training is regularly carried out, including but not limited to the use of social media. The Court of Appeal refers to the Claimant's posts as unwise. Employers will be in a much stronger position if there is absolute clarity over expected behaviours and what constitutes bringing the workplace into disrepute.
Fostering a positive workplace culture promoting inclusivity and diversity can also help reduce conflict. For further information please see our recent legal updates here and here.
If we can be of any assistance in relation to the issues raised in this update please do not hesitate to get in touch.
