Tue 03 Nov 2020

Dismissal for posting homophobic views on Facebook not religious discrimination

Reason for dismissal was way beliefs were expressed, not the beliefs themselves.

This year's employment tribunal awards statistics show that zero awards were made by employment tribunals in claims of discrimination on the grounds of religion or belief.  In the preceding two years only three awards were made each year.  The difficulty in many of these types of claim is that it is often not the beliefs that an employee holds that cause employers to take action against them, but rather the way in which those beliefs are expressed.  Another common reason for failure before the tribunal, particularly in cases involving the expression of religious beliefs on matters relating to the LGBTQ+ community, is that the beliefs relied upon do not meet the tests necessary for a belief to obtain protection under the Equality Act 2010.  A recent case in point is that of Mrs K Higgs v Farmor's School.

Mrs Higgs was a Christian and pastoral administrator and work experience manager at a school in the Bristol area.  In 2019 she was dismissed for gross misconduct after posting comments about LGBTQ+ education being introduced at her son's Church of England primary school.  The case received wide spread media coverage some considerable time before it was heard in September of this year. 

The comments suggested that children would be brainwashed by being taught all relationships were equally valid and "normal".  An anonymous complaint was then made to the (different) school where Mrs Higgs worked.  She was suspended and the investigation found further examples of similar posts and following a disciplinary hearing and unsuccessful appeal she was dismissed. Her subsequent tribunal application claimed the actions of the school amounted to either direct discrimination or harassment on the grounds of religion or belief.  Belief is defined as any religious or philosophical belief.

Rather than claim the discrimination and harassment she had faced was because of her Christian beliefs per se, Mrs Higgs instead contended a number of other philosophical beliefs had resulted in her mistreatment.  These included her lack of belief in gender fluidity, opposition to sex education in primary schools and a belief in the literal truth that God created man, male and female. 

To qualify for protection under the Equality Act a philosophical belief must, amongst other things, be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others. Many similar cases have failed to cross these hurdles.  However, in this case the tribunal were of the view that Mrs Higgs' beliefs did meet these tests and therefore were worthy of protection under the Act - as such it represents a development in the case law in this area of the law.  Despite what is a rare success on this point, the tribunal concluded that it was not these beliefs that motivated the school's treatment of her, rather it was a concern on the part of the School that, by reason of her social media posts, Mrs Higgs would be perceived as holding unacceptable views in relation to people in the LGBTQ+ community.  

Along with many of the other religion and belief claims that have come before the employment tribunal over the years, this one was at first instance and therefore does not set any binding precedent.    However, the Christian Legal Centre who backed Mrs Higgs has indicated the judgement will be appealed.  While the success of this claim, in particular, is clearly the aim of Mrs Higgs, for the bystander what is likely to be of more interest is whether a cross appeal will be made against the finding that the beliefs held by Mrs Higgs were worthy of protection.  If that finding is challenged the EAT's decision on it may well influence how many more claims of this nature we see in future.

Make an Enquiry

From our offices we serve the whole of Scotland, as well as clients around the world with interests in Scotland. Please complete the form below, and a member of our team will be in touch shortly.

Morton Fraser MacRoberts LLP will use the information you provide to contact you about your inquiry. The information is confidential. For more information on our privacy practices please see our Privacy Notice