The Court of Appeal recently handed down a landmark decision in the case of Higgs v Farmor’s School, setting an important precedent around the rights of employees and the responsibilities of employers in relation to the expression of controversial views in the workplace.
Background
Ms Higgs was dismissed by Farmor’s School by reason of gross misconduct, following her publishing posts on social media that were considered to be both transphobic and homophobic. Ms Higgs appealed her dismissal and argued that this was based on her religious beliefs and the fact that she didn’t believe in “gender fluidity”, or the notion that someone could change their biological sex. Ms Higgs also suggested that it would be wrong to teach anything different to children (particularly primary school children).
Ms Higgs brought claims for discrimination and harassment on the grounds of religion and belief. The Employment Tribunal (ET) initially dismissed Ms Higgs’ claims, finding that she had been dismissed because she had expressed her beliefs in a way which could have caused reputational damage to the school, rather than because of her actual beliefs.
Employment Appeal Tribunal Decision
Ms Higgs appealed to the Employment Appeal Tribunal (EAT). The EAT allowed her appeal and determined that the ET had failed to consider whether her dismissal was a proportionate response to the way she had expressed her beliefs, as required by the European Convention on Human Rights (ECHR). The EAT subsequently remitted the case to the ET to determine whether the school’s actions were objectively justified. Ms Higgs appealed to the Court of Appeal arguing that the EAT should have upheld her claims.
Court of Appeal Decision
The Court of Appeal upheld Ms Higgs’ appeal and found that her dismissal amounted to unlawful discrimination based on her protected philosophical beliefs. Particularly, the Court found that the school’s decision to dismiss Ms Higgs was not proportionate.
The Court of Appeal noted that although Ms Higgs’ social media posts were “intemperately expressed” and included “insulting references”, they were a “long way from…[a] direct attack on homosexuality”. The Court also found that neither the risk of reputational damage to the school nor the language of the posts were sufficient to justify Ms Higgs dismissal, particularly as she had not expressed those views at work or exhibited any discriminatory attitudes in her treatment of her students. It was also noted that Ms Higgs had worked at the school for six years and the school hadn’t raised any complaints about her work.
What does this mean?
This important judgment highlights the importance of protecting an employees’ right to express their beliefs, even if they may be controversial or unpopular. The decision also makes clear that although employers have the right to maintain a respectful and inclusive workplace, any restrictions on employees’ expression of beliefs must be necessary and proportionate.
There are concerns that the judgment could impact vulnerable minority groups as some employees may feel that the judgment gives complete freedom to express offensive opinions and that employers will be hesitant to act. However, employers should ensure that they continue to prevent discrimination and unlawful harassment against their employees and should always take legal advice when such issues arise.
If you’re experiencing any issues in relation to discrimination in the workplace, please contact a member of the Employment Team.
