Ruling shows employers must act proportionately in respect of protected beliefs

Kate Dodd and Francis Keepfer of Pinsent Masons were commenting after the Court of Appeal issued a significant ruling on a case (57 pages/639 KB) involving the dismissal of a school administrator in Gloucestershire that has drawn considerable attention due to its implications for employment rights and free speech.

Dodd said: “The judgment shows that employers need to think carefully about whether they are taking action because an employee has objectively expressed their views in a way that is, for example, ‘grossly offensive’ or has already caused the employer reputational damage, or whether they are taking the action because they disagree with the employee’s underlying belief. In this case, the employer was found to have taken the latter approach. Even if an employer does take the former approach, it must be confident that the action taken is proportionate in the circumstances of the particular case, that is, whether less discriminatory action might be taken to achieve the same aims.”

The dispute was raised by Kristie Higgs, a pastoral administrator and work experience manager at Farmor’s School in Fairford, Gloucestershire. Higgs was dismissed in January 2019 after a parent complained about her social media posts which were deemed to express “homophobic and prejudiced views”. The posts led to an investigation and subsequent disciplinary action by the school. Higgs, a devout Christian, argued that her posts were a reflection of her religious beliefs and that her dismissal constituted discrimination on the grounds of religion and belief.

Higgs initially took her case to the Employment Tribunal (ET) where she claimed direct discrimination and harassment under sections 13 and 26 of the Equality Act 2010. The ET considered that the decisions taken by the school were not because of her beliefs, but because “her posts might be seen as evidence that she held other beliefs, which might be described as ‘homophobic’ or ‘transphobic’”. The case progressed to the Employment Appeal Tribunal (EAT) where it was found that the ET had not addressed the “reason why” question correctly. The EAT set out to determine whether the school’s actions were because of the manifestation of Higgs’ protected beliefs or were due to a justified objection to the manner of that manifestation. The EAT ultimately upheld the ET decision, concluding that the dismissal was based on the manner in which Higgs expressed her views, rather than the views themselves.

However, the Court of Appeal overturned the previous rulings, stating that the school had failed to adequately consider Higgs’ right to freedom of expression and her religious beliefs. The court noted that the school’s actions were disproportionate, and that Higgs’ dismissal was not a necessary or appropriate response to her social media activity. The court emphasised that while schools have a duty to maintain an inclusive environment, this must be balanced against the rights of individuals to express their beliefs.

Keepfer said: “The judgment reiterates three very important points. First, there is a fundamental difference between the right to hold a belief and the right to manifest that belief. Second, the dismissal of an employee merely because they have expressed a protected belief to which an employer objects will constitute unlawful discrimination, whereas the dismissal of an employee because of the objectionable way in which they have manifested that belief can, in limited circumstances, be lawful. Finally, if an employer is seeking to dismiss an employee because of the objectionable way in which they have manifested their protected belief, they must first carry out a proportionality assessment.”

The judge emphasised that the “threshold of objectionability” is high, and here, the school did not meet that threshold. The judgment also highlights the importance of taking “an objective view”, that is, “judging a statement by what it actually says, and not by reference to a concern about what some readers might wrongly read into or infer from it”.

The issue was that the previous decisions had taken the latter approach, judging Higgs’ statements by reference to the school’s concern about what some readers might read into or infer from it. The Court of Appeal judge raised a public policy concern about that approach, and one “that will surely be seen as a victory for proponents of freedom of speech”, said Keepfer.