The Court of Appeal gives new guidance on how discrimination law applies to protected beliefs, in this latest decision in the Higgs v Farmor’s School case. While the employee won her claim on the facts, the court has confirmed that direct belief discrimination can be justified in some cases.

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The claimant, Mrs Higgs, is a Christian who worked as a pastoral administrator and work experience manager for Farmor’s School. In 2018, the Head Teacher of the school received an email complaining about Facebook posts made by Mrs Higgs which were described as communicating “homophobic and prejudiced views“. Her posts, which were investigated by the school, included statements such as “THEY ARE BRAINWASHING OUR CHILDREN! […] children will be taught that all relationships are equally valid and ‘normal’ […] and that gender is a matter of choice” and “the LBGT [sic] crowd […] are destroying the minds of normal children by promoting mental illness“. She said these posts were written out of concerns about what was happening in her son’s primary school (not the school that employed her). Following a disciplinary process arising from this complaint, Mrs Higgs was dismissed for gross misconduct. 

Mrs Higgs brought claims of direct discrimination and harassment on the grounds of a number of beliefs, including a lack of belief in same-sex marriage, and a lack of belief that someone can change their biological sex/gender. The Employment Tribunal originally rejected her claims of discrimination, on the basis that there was not a sufficiently strong connection between her protected beliefs and the specific wording of the Facebook posts and finding that the school’s treatment had arisen from the latter.

The Employment Appeal Tribunal (EAT) decided in June 2023 that there was in fact a close or direct connection between the Facebook posts and her underlying beliefs, and it was therefore necessary to carry out a proportionality assessment of the school’s decision to dismiss. The case then came before the Court of Appeal.

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Dismissal found to be discriminatory as disproportionate

The court concluded that the school’s decision to dismiss Mrs Higgs was discriminatory because of her beliefs. In arriving at that decision, they weighed up the facts to assess the proportionality of the school’s decision. They considered the audience, content and tone of the statements, their potential to cause reputational damage, and the nature of the employer’s business. The court accepted that the posts used offensive language. However, the school’s decision to dismiss Mrs Higgs for gross misconduct was not objectively justified.

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Reasons why dismissal was disproportionate in this case

The court accepted that Mrs Higgs would not have let her views influence her work, and she had not displayed discriminatory attitudes to pupils. Mrs Higgs said she would not express her views or exhibit any prejudice against gay or trans people in the work environment. No complaint had been raised against her in her six years working for the school. There was no evidence that the school’s reputation had been damaged. The court found that “the risk of widespread circulation was speculative at best“. The posts had been made on her personal Facebook account, to around 100 people and under a name she did not use in her role at the school, and with no reference to that school. Although the individual who raised concerns had identified her, there was no evidence that others had recognised who she was.

The court found that the posts did not primarily intend to incite hatred or disgust for gay or trans people. Although they were “hyperbolically expressed” and “unquestionably used offensive language“, they were mostly quoted from other sources and were not, in the circumstances, “grossly offensive“. While emphasising that they did not intend to downplay the offensiveness of the posts, the court found that the accusations of “child abuse” and “mental illness” were unlikely to be taken literally in the context of what she was posting and re-posting. (We would add that the court’s views on this are surprising and presumably come from their views of the specific context of the case.)

The language used was not Mrs Higg’s own (some were re-posts of messages from the US), and she made clear that, when asked to reflect on the actual language being used, she did not agree with some of it. For example, she said that she would not have used the terms “brainwashing“, “delusional thinking” and “psychotic thinking“. While the court found that this did not absolve her of responsibility, it considered it to be a relevant factor.

The person who raised the original concerns cited the worry that Mrs Higgs worked with students within the LGBT+ communities. However, presumably the court thought this less significant given they accepted that Mrs Higgs would not have let her views interfere with her work.

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Out of work setting was key

It’s important to bear in mind that this case was entirely about what was posted on a personal social media account with very limited reach. The court based its decision on the agreement that there was no suggestion of Mrs Higgs bringing her views into work. If she had posted similar content on (for example) a work social media channel, the situation would have been different.

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Something short of dismissal might have been justified?

The focus of this case was on the dismissal sanction and whether that went too far. The court confirmed that the school was certainly entitled to investigate the posts – in fact the court said it would have been irresponsible not to have done so in the circumstances. The court did not explore whether the school could lawfully have issued a disciplinary warning to Mrs Higgs, or what would have happened if she posted content with similarly offensive language after being warned.

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Direct discrimination can be justified

This decision has a legally significant impact on direct discrimination law. The court has re-emphasised that the expression of a belief “is outward-facing and for that reason…may require to be limited to as to take account of other interests“. The judgment clarifies that the holding of a belief and the expression of that belief are treated differently at law and, critically, that this applies to direct discrimination. Direct discrimination based on religion or belief may therefore be objectively justified.

This puts religion and belief in a different category to the other characteristics which are protected under the Equality Act 2010, as the usual approach is that direct discrimination is not capable of justification.

In religion or belief cases, dismissing an employee just because they hold or express a protected belief is unlawful discrimination. However, dismissing an employee because of something objectionable in the way they express the belief is potentially justified. The question is whether this is a proportionate response.

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Practical implications for employers

While employers will hope that employees remain respectful and sensitive, it’s possible that they could see more challenging workplace interactions. Employers may need to emphasise the need for appropriate and respectful conduct within the workplace. Nothing in this judgment changes the protections for employees not to experience harassment in the workplace.

Minority employees, and in particular those in the LGBT+ communities, could clearly be distressed by some of the details of this case and the surrounding media climate. Employers may wish to emphasise their commitment to an inclusive workplace, and to ensure that their policies and practices are robust. The key takeaway is that, following this decision, it is likely to be more challenging to take action against employees for statements made on purely personal social media accounts. Likewise, a “zero tolerance” approach to any offensive statements made outside work and linked to protected beliefs will be risky.

Factors which would make disciplinary action more likely to be objectively justified include:

• The objectionable statement being made in a work environment, rather than on personal social media.
• Evidence/higher chance of reputational damage to the employer.
• A genuine risk that the views expressed are likely to influence, or have influenced, the employee’s work or interaction with others in the workplace.
• Evidence that the employee in question has expressed or demonstrated concerning behaviour towards, for example, colleagues from minoritised communities.
• A lack of insight as to the effect of the employee’s actions (e.g. refusing to remove posts that are known to have caused offence), resulting in a lack of confidence that the employer can prevent more serious or damaging conduct in the future.

Another key message is that employers need to be careful not to fall into the trap of stereotyping. It is useful for those responsible for investigating or disciplining employees to check that they are not simply acting on stereotypes, for example, assuming all Muslims or all Christians will believe or do a certain thing. It will be important to assess the genuine risk of the individual employee acting inappropriately towards colleagues.

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If you have any specific questions you would like advice on or if you would like information about what is discussed in this article, then please contact: Abi.Frederick@lewissilkin.com of Lewis Silkin LLP.