Protected characteristics, dismissal and discrimination: where is the line for employers?

Introduction

The recent Court of Appeal judgment in Higgs v Farmor’s School shows that employers must carefully balance their responses to how employees express their beliefs, particularly when they clash with other protected characteristics. A decision to dismiss must be objectively proportionate and justifiable in relation to the objectionable conduct.

Background

Ms Higgs, the claimant in the matter, was a secondary school administrator and work experience manager for the respondent school. She is of Christian faith, and believes that a person cannot change their biological sex. She had reposted some messages on her personal Facebook page which were critical of the current sex education regime at schools, with a particular focus on the inclusion of ‘gender fluidity’ and the equality of same-sex marriage with heterosexual marriage.

The school was concerned that the posts had been the subject of a parental complaint by somebody who had concluded that the claimant was hostile towards the LGBTQ+ community, as a consequence of her strong beliefs including that issues surrounding gender fluidity and same-sex marriage should not be taught in schools. The school considered this was compounded by the claimant’s lack of insight which meant the posts were not removed and so could potentially be seen by others who may have similar objections to the person who had already complained. The school considered this a reputational risk. On the basis of those conclusions, the claimant was dismissed for gross misconduct for the posts.

The claimant brought claims of direct discrimination and harassment on the ground of her protected religious beliefs. An Employment Tribunal agreed that her beliefs were protected but dismissed her claims, finding that she was not dismissed because of her beliefs, but because of the school’s concern that she would be perceived as harbouring transphobic and homophobic views. The claimant appealed this decision, and the EAT ordered the case to be remitted to the tribunal to consider whether the dismissal was a proportionate response to the way in which the claimant had expressed her protected beliefs. The claimant appealed to the Court of Appeal, submitting that the EAT should have gone further and upheld her claim.

The Court of Appeal

The Court of Appeal (CoA) allowed the claimant’s appeal, concluding that the tribunal was bound to find that the claimant’s dismissal was not objectively justifiable as proportionate, and therefore constituted unlawful discrimination.

Even if the school was entitled to object to the claimant’s Facebook re-posts on the basis that the language used was offensive to the LGBTQ+ community, and in a context which was relevant to the claimant’s work (i.e. the syllabus for such issues), the school’s decision to dismiss the claimant on these grounds was ‘unquestionably’ objectively disproportionate. Some key considerations of the CoA were:

• The language used, which included ‘stupidly rhetorical exaggeration’ and ‘derogatory sneers’ such as ‘the LGBT crowd’ and ‘far-left zealots’, was objectionable but not grossly offensive nor intended to incite hatred or disgust for gay or trans people;
• the posts were not the claimant’s own, she had reposted other peoples’ posts; whilst this in itself would not absolve the claimant of responsibility, the CoA considered it relevant to the question of degree of culpability;
• Regarding the school’s concerns about potential damage to its reputation, it was noted that the evidence did not show that the reputation of the school had been damaged. The posts were on the claimant’s personal account, in her maiden name, and made no reference at all to the school. Also, the school accepted that there was likely no possibility that readers of the posts would assume that those posts were representative of the views of the school itself. By the date of the dismissal hearing, only one person was known to have recognised the claimant as an employee of the school.
• Neither the school nor the tribunal had any reason to believe that the claimant would let her views influence her actual work at the school. She was a long-serving employee, who had had no complaints against her.

Comment

The judgment in this case illustrates that there a number of factors that employers should take into consideration when approaching matters of dismissal in the context of protected characteristics.

It has been well established in previous cases that an employer is entitled to take disciplinary action against an employee where the manner in which their protected beliefs are expressed or ‘manifested’ are inappropriate. However, this case reinforces the crucial proviso to that principle, that the employer’s response must be proportionate to be objectively justifiable and, therefore, lawful.

There is an increasing awareness of the way in which seemingly ‘competing’ protected beliefs interact or contradict one another and an expectation on employers to balance the difficulties that this creates amongst staff. The takeaway message from this case is that the expression of an individual’s beliefs, which appear negative or derogatory to another protected group, may not necessarily warrant dismissal or other disciplinary proceedings, when put through the filters in the judgment in Higgs.