Former school worker dismissed for ‘brainwashing our children’ Facebook posts wins has case remitted to Employment Tribunal on appeal

About this case:

• Citation:
  [2023] EAT 89
• Judgment:
  External link
• Court:
  UK Employment Appeal Tribunal
• Judge:
  Mrs Justice Eady

Kristie Higgs, who was employed by Farmor’s School in Fairford, argued that the ET had applied the wrong legal test in determining whether she had been discriminated against. An intervention in the case was made by the Archbishop’s Council of the Church of England, which took a neutral stance as to the particular merits of the claims in the case.

The appeal was heard by the President of the Employment Appeal Tribunal, Mrs Justice Eady. Richard O’Dair appeared for the appellant, Debbie Grennan for the respondent, and Sarah Fraser Butlin for the intervenor.

Perverse conclusion

The respondent employed the claimant in 2012 as a pastoral administrator and work experience manager, roles in which she would have contact with pupils who might be considered vulnerable or who had LGBT characteristics, as well as parents. On 26 October 2018 the school’s head teacher, Mr Evans, received an email from a parent complaining about a Facebook post the claimant had made in which she claimed that the government was “brainwashing our children” by introducing mandatory relationship education in primary schools teaching that all relationships were equally valid and normal.

On 31 October Mr Evans spoke to the claimant and she confirmed she had made the post and others complained about by the parent. She was recorded as responding that she was not against LBGT people but expressed opposition to government policy being introduced in a Church of England primary school attended by her younger child. The claimant was later suspended pending an investigation.

Following the investigation, in which the claimant acknowledged her choice of language was “not the best” and that she shouldn’t have copied and pasted aspects of the posts from others, a disciplinary hearing was held that resulted in summary dismissal for gross misconduct. Before the Employment Tribunal she contended that she had suffered direct discrimination for holding beliefs in marriage as a divinely instituted union between man and woman and opposition to sex and/or relationship education for primary school children, among other beliefs.

The ET concluded that it was not the claimant’s protected views that resulted in disciplinary action but the respondent’s conclusion that her actions might reasonably, and in fact did, lead others to conclude that she held wholly unacceptable views. The causal nexus between the protected characteristic and the respondent’s conduct had not been made out. On appeal it was argued that the ET had erred in failing to consider the proportionality of the interference with the manifestation of the claimant’s beliefs and reached a perverse conclusion in holding it was reasonable for third parties to conclude she was homophobic or transphobic.

Impermissibly narrowed the task

In her decision, Justice Eady said of the ET’s conclusions: “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. As the claimant objects, the ET’s approach meant that it impermissibly narrowed the task it had to undertake.”

She continued: “It was not enough to find that the respondent had been motivated by a concern that the claimant could be perceived to hold ‘wholly unacceptable views’; the ET needed to consider whether that motivation or concern had arisen out of the claimant’s manifestation of her beliefs (accepted to be protected under the Equality Act 2010) or by a justified objection to that manifestation.”

Addressing the respondent’s reaction, Eady J said: “It is apparent that the ET considered the respondent’s actions were concerned with the protection of the rights, freedoms and reputation of other. The ET did not, however, then go on to consider the necessity of the measures taken by the respondent to meet that concern. Specifically, it failed to carry out any assessment of the proportionality of the respondent’s actions; a task that would have required it to balance the interference with the fundamental rights of the claimant against the legitimate interest arising in respect of the rights, freedoms and/or reputation of others.”

She concluded: “While, therefore, the appeal should be allowed, this is not a case where it can properly be said that only one outcome is possible, and the appropriate disposal must be for this matter to be remitted for determination. That remission should be on the basis that it has already been found that the Facebook posts in issue had a sufficiently close or direct nexus with the beliefs relied on by the claimant in these proceedings such as to amount to a manifestation of those beliefs.”

The case was therefore sent back to the Employment Tribunal for determination of the question of what influenced the respondent’s actions.