In Higgs v Farmor's School the claimant was a Christian employed by the school as a pastoral administrator and work experience manager. She was dismissed for posting Facebook posts, mostly quoted from other sources, objecting to Government policy on sex education in primary schools because of its alleged promotion of “gender fluidity” and the equivalence of same-sex marriage with marriage between a man and a woman. The messages were posted on the claimant's personal Facebook page on which she used her maiden name. One parent had made the connection and complained to the school stating they found the posts to be offensive and expressing a concern about the influence the claimant may exert over "vulnerable pupils".
Employment Tribunal
Before an employment tribunal ("ET"), it was found that the claimant's beliefs about gender fluidity and same-sex marriage equating to heterosexual marriage were protected beliefs under the Equality Act 2010 ("the Act"). However, her claims were dismissed because it was found that the reason for the dismissal was not the claimant's beliefs themselves, but the school's concern about potential reputational damage due to the claimant's actions being seen as homophobic and transphobic.
Employment Appeal Tribunal
The Employment Appeal Tribunal ("EAT") disagreed, allowing an appeal on the basis that the ET had failed to consider whether the posts were manifestations of the claimant's beliefs. If they had found they were, then the ET needed to consider whether or not the beliefs had been manifested in an objectionable way and if so, whether dismissal was a proportionate response to that objectionable manifestation. The ET had failed to do this. Despite the EAT going on to state that it believed the claimant's dismissal was not a proportionate response to what she had posted on Facebook, it remitted the case back to the ET. The claimant appealed the decision to remit the case back to the ET, arguing that the EAT should have gone further and upheld her claim.
Court of Appeal
The Court of Appeal allowed the claimant's appeal, substituting a finding of direct discrimination. When assessing proportionality, the Court considered: -
- The language used, while offensive, was not "grossly offensive". It did not incite hatred or disgust, and was, according to the Court "a long way from the kinds of direct attack" that had been seen in other similar cases.
- The language used was not the claimant's own, most of it appearing in messages she had reposted from others. She had also made clear to the school that she did not agree with all the language used - something that the Court noted would not absolve her from responsibility but does impact on the degree of culpability.
- There had been no evidence that the school's reputation had in fact been damaged by the time the disciplinary hearing had convened - the school's concern had been with future potential damage. The school had also accepted that there was no possibility that a reader would think the views the claimant had expressed were those of the school.
- Even if the readers of the post were genuinely concerned that the claimant might let her views influence her work, the disciplinary panel had not believed she would do so. She had six years' service and her views had not influenced her actions during that time.
Taking those points together, the Court concluded that dismissal was not even arguably a proportionate response from the school.
Learning points
This case suggests that the bar for speech that is offensive enough to justify dismissal does sit quite high. The claimant's posts included references to schools "indoctrinating their children"; "the brainwashing of deranged educators"; "destroying the minds of normal children by promoting mental illness" and accusations of child abuse. The Court described the claimant's reposting of messages using language with which she did not agree as "no doubt unwise", but it did not accept that it could justify dismissal, particularly when she was a long-serving employee against whose work there was no complaint of any kind.
In part the seriousness of what the claimant did was also lessened because it occurred away from the workplace. Disciplining employees for actions taken away from the workplace is fraught with difficulty, and when social media is involved, it makes a complicated situation even more so. As was noted in the judgment, "something that might be unproblematic on a private Facebook page could justify different treatment if communicated in a work setting".
Another significant factor here was that the posts did not constitute a direct attack on others. Employers have a responsibility to prevent discrimination and harassment in the workplace - had that been an issue here then dismissal might have been proportionate.
Employers have to walk a fine line when dealing with opposing beliefs in the workplace. Caution needs to be exercised when non-work-related social media is involved, and employers need to be cognisant of an employee's right to express their beliefs (in an appropriate way) even when those beliefs may not be popular. Where those beliefs are expressed in a way that may be objectionable, an employer needs to bear in mind the context of what has been said. This would include considerations such as the tone of the statement, the likely audience, the risk of the views being understood to be that of the business and the impact they may have on the business. The employer must then ensure that they respond in a proportionate manner.
