The intersection of free speech, religion, politics, and employment law often presents complex challenges, as illustrated by the recent Court of Appeal judgment in Higgs v Farmor’s School. This case highlights the delicate balance between an individual’s right to express personal beliefs and an employer’s duty to maintain a respectful and inclusive environment.

Background of the Case

Mrs Higgs, a Christian member of staff at Farmor’s School, was dismissed from her position after posting messages on her personal Facebook account opposing the teaching of gender fluidity and same-sex marriage in schools and requesting signatures for a petition to prevent the ‘brainwashing’ of school children through government policies.

An anonymous complainant reported Mrs. Higgs’ posts to the Head Teacher, expressing concerns that Mrs Higgs’ views were offensive and might negatively influence the pupils.

At an employment tribunal, Mrs Higgs claimed that she had been discriminated against due to her religious beliefs. The tribunal acknowledged that Mrs. Higgs’ beliefs were protected under the Equality Act 2010 but concluded that her dismissal was due to the manner in which she expressed these beliefs on social media, which was perceived to potentially harm the school’s reputation.

Court of Appeal Judgment

The Court of Appeal ruled in favour of Mrs. Higgs, finding that her dismissal constituted unlawful discrimination on the grounds of religion or belief. Reference was made to the European Convention on Human Rights and the Human Rights Act 1998 – in that everyone has the right to freedom of thought, conscience and religion. And that the freedom to manifest these beliefs are subject only to limitations prescribed by law that are necessary in democratic society in the interest of public safety, protection of public order/health/morals, or for the protection of the rights and freedoms of others. Further that everyone has the right to freedom of expression which again are subject to the restrictions of law.

Regarding the Equality Act 2010, the definition of direct discrimination was referred to as a person discriminating against another person because of a protected characteristic which results in the discriminated party being treated less favourably than others. The protected characteristic in this instance being ‘religion or belief’.

The Court of Appeal judge also referred to the separability principle which in simple terms relates to whether the reason for an employer’s action is genuinely separable from the protected characteristic (in this case, religion or belief) or if it is inherently linked to it.

As an example, if this was a whistleblower case, which involved an employee hacking into an employer’s database to prove a point, there may be a distinction to be made in terms of assessing the treatment of said employee. This feeds into proportionality, which was a key aspect of the judgment’s reasoning, as it was found that sacking Mrs Higgs was not a proportionate response to her actions. It was not believed that her views would negatively impact her work or impact the school’s reputation.

The court emphasized that while her posts used strong language, they did not directly attack the LGBT community. The judgment underscores the importance of proportionality in disciplinary actions related to expressions of personal beliefs.

Employment Law Implications

This case serves as a critical reminder for employers to carefully consider the legal framework surrounding freedom of expression and religious beliefs. Employment law mandates that any disciplinary action must be proportionate and justified, taking into account the context and intent behind the employee’s actions.

Employers face the challenging task of balancing free speech with the need to foster an inclusive and respectful workplace.

Key Takeaways for Employers

  1. Proportionality in Disciplinary Actions: Employers must ensure that any disciplinary measures are proportionate to the nature and impact of the employee’s actions. Overly harsh penalties for expressions of personal beliefs can lead to legal challenges and claims of discrimination.

  2. Context and Intent: The context and intent behind an employee’s statements are crucial in determining the appropriateness of disciplinary actions. Employers should assess whether the statements were intended to incite hatred or merely reflect personal beliefs.

  3. Clear Policies and Training: Establishing clear policies on social media use and freedom of expression can help prevent misunderstandings and conflicts. Regular training on these policies can ensure that employees understand the boundaries of acceptable behaviour.

  4. Open Dialogue: Encouraging open dialogue and respectful discussions about sensitive topics can help create a more inclusive workplace. Employers should foster an environment where diverse perspectives are valued and respected.

Seeking legal advice can help employers understand how to approach issues with their staff and especially how to deal with sensitive or controversial matters. It is important that employers deal with these issues in the correct way to avoid more complex and challenging problems from arising. Speaking to an employment solicitor can help you determine your options and next steps.

Our employment law solicitors at Farleys are experienced in advising employers on employment tribunal claims relating to unfair dismissals or discrimination in the workplace. To discuss how we can assist you, please call 0845 287 0939 or get in touch by email through our online contact form.