Douglas Strang

Higgs v Farmor’s School and others relates to an incident which happened as long ago as October 2018 and it is a separate matter of concern that it has taken the best part of five years to go through the employment tribunal and EAT process.

Background

The claimant is a Christian who was employed as a pastoral administrator and manager at a secondary school. In her roles, she was in regular contact with pupils and parents. It became known to the head teacher via a parent that the claimant had shared and endorsed certain material on Facebook. The material shared by the claimant on Facebook expressed concerns about the proposed approach to relationship and sex education in schools, suggesting that these proposals were contrary to fundamental Christian beliefs. The articles include the following comments:

and

The complaint to the school suggested that these posts contained “homophobic and prejudiced views” and expressed concern about the claimant having influence on vulnerable pupils, some of whom would likely be LGBT, as part of her role.

The claimant was suspended, and after an investigation and disciplinary hearing was dismissed for expressing discriminatory views, or at least views which could be perceived as such, and thereby affecting the school’s reputation. She had made clear she would not desist from making further such posts.

Employment tribunal claim

The claimant raised an employment tribunal claim for unlawful direct discrimination and harassment related to her religion or belief. She relied on a number of beliefs she held about sex/gender, marriage, and the literal truth of the Bible.

We have considered in previous blogs the clash between, on the one hand, religious/philosophical beliefs and, on the other hand, the prevention of discrimination on grounds of sexual orientation or transgender status. These are very difficult legal issues and the courts and tribunals have had to grapple with them on numerous occasions.

In this case, the discrimination/harassment claim was rejected by the employment tribunal, on grounds that the claimant was not dismissed for reasons related to her beliefs, but due to the fact that others might reasonably perceive from her posts that she held homophobic and transphobic views (which she strongly denied holding).

EAT decision

The EAT disagreed with the tribunal’s reasoning – there was sufficient connection between the reasons for dismissal and the claimant’s beliefs to require the employment tribunal to consider things in more detail.

The question for the tribunal should have been whether the reason the school had dismissed the claimant was a) her religious beliefs or her manifestation or expression of them (which would amount to unlawful discrimination) or b) a justified objection to the manner of that manifestation/expression (which would not amount to unlawful discrimination). The employment tribunal had failed to properly make this distinction.

As a result, the tribunal had also failed to carry out the proper balancing exercise between the protection of the claimant’s free speech and beliefs, and the protection of the rights of others. Carrying out that balancing exercise would include consideration of content and tone, the likely audience, whether the employee has stated the views are personal only, the risk for reputational harm, the nature of the employer’s business and of the employee’s role, extent of contact with vulnerable persons etc.

The EAT was not able to carry out that balancing exercise so the case was sent back to the employment tribunal to address the legal issues properly and come to a fresh decision on whether the claim should succeed or fail. The tone of the claimant’s posts may well be her most significant challenge when the case is heard again.

Summary

Cases of alleged misconduct relating to social media posts have been a headache for employers for a number of years now. Where the concern relates to posts expressing gender critical beliefs (which have been held to be legally protected) or other views which could be considered by some to be discriminatory (an increasingly common issue) employers need to tread very carefully indeed, and expert advice should be sought.

Douglas Strang is a senior associate at BTO LLP