Dismissal of Christian for gender critical social media posts was direct discrimination

We have received the long-awaited Court of Appeal decision in the case of Higgs v Farmor's School. This judgement relates to the complex issues that arise where employers are faced with an employee’s expression of their religious or philosophical beliefs and those beliefs clash with the protected characteristics of another group.

The Claimant worked in a pastoral capacity at a secondary school and the school received a complaint from a parent about a Facebook post made by the Claimant re-posting critical comments which related to the teaching in schools about same-sex relationships, same-sex marriage and gender being a matter of choice. The claimant was suspended and eventually dismissed for gross misconduct, the school citing the inflammatory language used in the posts, that a parent had taken offence and that there was a potential risk of harm to the school's reputation.

The Claimant brought claims for direct discrimination and harassment on the ground of religion or belief. The Tribunal accepted that her beliefs in same-sex marriage and other elements of her faith amounted to a religion or belief within the protection provided by the Equality Act 2010.

The Tribunal at first instance rejected the claims of direct discrimination or harassment on the basis that the Claimant had been dismissed because of the provocative language used in her post and might reasonably therefore be perceived as holding homophobic and transphobic beliefs which would not qualify for protection under the Equality Act.

The Employment Appeal Tribunal allowed the Claimant’s appeal on the basis that the Tribunal had failed to engage with the question of whether the school’s action was related to the manifestation of her religious beliefs and it had failed to consider the proportionality of the school's response.

This is not the first such Tribunal claim dealing with the necessary balance between an employee’s freedom to express and manifest their own religion or beliefs, and where those beliefs are controversial or clash with the protected characteristics of others.

The Court of Appeal upheld the claim for direct discrimination and provided the following guidance.

• The dismissal of an employee merely because they have expressed a religious or other protected belief to which the employer, or a third party with whom it wishes to protect its reputation, objects will constitute unlawful direct discrimination.
• However, if the dismissal is motivated not simply by the expression of the belief itself (or third party’s reaction to it) but by something objectionable in the way in which it is expressed, determined objectively, then the dismissal will be lawful if, but only if, the employer shows that it was a proportionate response to the objectionable feature.
• In this case, the Claimant had posted messages, mostly quoted from other sources, objecting to government policy on sex education in primary schools. It was not in dispute that the Claimant’s beliefs that gender is binary and that same-sex marriage cannot be equated with marriage between a man and a woman were protected by the Equality Act.
• The School sought to justify the dismissal on the basis that the posts were intemperately expressed and included insulting references to the promoters of gender fluidity and “the LGBT crowd”, which were liable to damage the school's reputation in the community. The Court of Appeal’s decision was that neither the language of the posts nor the risk of reputational damage were capable of justifying the Claimant’s dismissal in circumstances where the Claimant had not said anything of the kind at work or displayed any discriminatory attitudes in her treatment of pupils.

In addition to these general principles, the decision also provides some guidance for employers seeking to rely on reputational damage as grounds for disciplinary action, noting that there are three potentially relevant considerations to the proportionality of interfering with an employee's freedom of religion or belief in order to protect an employer's reputation

• The subject matter. Expressing views about matters which have nothing to do with the employer’s business will be less likely to damage its reputation.
• The way in which the beliefs are expressed. However, the Court of Appeal noted that the threshold of offensiveness should be high and protection should not be lost simply because an employee expressed themselves intemperately.
• Whether it is clear that the views expressed are personal to the employee or whether they could be imputed to the employer. In this case it was deemed unlikely that readers of the post would believe the employee was speaking for the school.

In this case, the Claimant’s posts were on her personal Facebook account likely to be seen only by a small number of people. Although they did have some potential to damage the school's reputation, as set out above, the threshold for reputational damage is set high and the Court of Appeal held that an individual’s words should not be judged on what some readers might wrongly read into them or infer from them. The issue is what meaning the words actually have and what message they would convey to a reasonable reader.

Cases like this always require a balancing act and depend on their own circumstances but for employers dealing with this difficult issue, this judgement of the Court of Appeal should now be their first port of call for guidance.