Court of Appeal hands down judgment in Higgs v Farmor's School case

Yesterday, the Court of Appeal handed down its highly anticipated judgment in the case of Higgs v Farmor's School. The judgment has significant implications for employers, where their employees express potentially controversial beliefs at work and outside work, including on social media. Where the issue concerns social media use outside of work, the case confirms how difficult it is for employers to rely on reputational risk alone to justify the dismissal of an employee.

Facts of the case

Mrs Higgs was a Christian and employed as a counsellor at Farmor's School. She was dismissed following her creating a number of Facebook posts (including reposts) in which she criticised the way gender and relationships are taught in schools. A parent at the school complained that they found Mrs Higgs' views to be "homophobic and prejudiced". The school investigated, suspended and ultimately dismissed Mrs Higgs, who subsequently brought claims against the school for harassment and direct discrimination.  She argued that she had been dismissed because of her religious beliefs that gender is binary and that same-sex marriage cannot be equated with marriage between a man and a woman.

Employment Tribunal and Employment Appeal Tribunal findings

The Employment Tribunal dismissed Mrs Higgs' claims, stating that she was not dismissed because of her beliefs but because the school was concerned about possible reputational damage due to her actions being seen as homophobic and transphobic. The Employment Appeal Tribunal disagreed and allowed Mrs Higgs' appeal on the ground that the Tribunal had not considered that her social media activity had been an expression of her protected beliefs.  The case was remitted to the Tribunal but Mrs Higgs appealed to the Court of Appeal on the ground that judgment should be given in her favour without a further hearing.

Court of Appeal Judgment

The Court of Appeal allowed Mrs Higgs' appeal and substituted judgment in her favour. Following Forstater v GCD Europe, the Court confirmed that gender-critical beliefs, such as those held by Mrs Higgs, and the manifestation of such beliefs, are protected by the Equality Act.  However, if the expression of the belief itself is objectionable, determined objectively, then the dismissal will be lawful if the employer can show that it was a proportionate response.

The school had argued that the dismissal was indeed proportionate on the basis that the posts in question included insulting references to the promoters of gender fluidity and “the LGBT crowd” which, they said, were liable to damage the school’s reputation in the community.  The Court of Appeal disagreed - Mrs Higgs' beliefs had not impacted her behaviour at work towards pupils, and were not expressed at work. As such, the school's treatment of her was not proportionate to the perceived reputational risk.  They said that dismissal was not even arguably a proportionate sanction for Mrs Higgs' conduct.  While it was no doubt unwise of her to re-post material expressed in provocative language, and in circumstances where people were liable to realise her connection with the school, the Court did not accept that that could justify her dismissal, and still less so where she was a long-serving employee against whose actual work there was no complaint of any kind.

Implications

This case, and the parameters it lays down between social media conduct and conduct in the workplace, are significant. Up until this point, there have been mixed findings on the impact of social media conduct which happens outside work, on employment.  Historically, employers have cited 'reputational risk' as a key factor in determining outcomes for employees who express views on social media that may be considered unacceptable. The bar for what is sufficiently objectionable would appear to be a high one – the Court of Appeal stating that, while the language in the posts might have been offensive, it was not "grossly offensive".  It was also relevant that the majority of Mrs Higgs posts were re-posts and that there was no evidence of actual reputational damage.  

If any of these factors had been different, and if the school had opted for a lesser form of disciplinary action, then Mrs Higgs may not have been successful.  What is clear, however, is that cases involving the expression of personal beliefs at work, or indeed outside of work, need to be considered very carefully, notwithstanding the fact that employers must continue to take appropriate steps to prevent discrimination and harassment. As the political landscape becomes increasingly charged, this is an issue which is likely to be subject to further judicial scrutiny.