How can an employer justify dismissing an employee for controversial social media activity?
In Higgs v Farmor’s School, the Court of Appeal held that the dismissal of a secondary school employee for sharing posts on Facebook objecting to the teaching of same sex marriage and gender-fluidity in schools was unlawful direct discrimination on the ground of religious or protected belief within the meaning of the Equality Act 2010 (“EqA”).
In a lead judgment by Lord Justice Underhill, the decision is notable for finding contrary to orthodoxy that direct discrimination on the ground of manifesting a religious or protected belief can be justified. In Higgs itself, however, the employer failed to justify its actions.
Facts
In 2018, Kristie Higgs, a Christian, posted and re-posted messages on her Facebook page, objecting to government policy on sex education. The posts expressed her beliefs that (a) same-sex marriage could not be equated with traditional marriage between a man and a woman and (b) gender is binary and not a matter of choice. The posts were mainly cut-and-paste from other (American) sources and included language such as, “brainwashing”, “the LGBT crowd” and “child abuse”.
A parent of the School saw the posts and complained anonymously to the Headteacher. Following an investigation, Ms Higgs was dismissed for gross misconduct. The School found that her posts contained “inflammatory and quite extreme” language and posed a risk of harm to the school’s reputation.
Ms Higgs brought claims in the Employment Tribunal of direct discrimination and harassment pursuant to sections 13 and 26 EqA. The ET dismissed the claims. She appealed to the EAT which allowed her appeal and remitted the case. Ms Higgs appealed further to the Court of Appeal on the ground that the EAT was wrong to remit. It was bound to hold that the treatment she complained of was not an objectively justifiable response to the Facebook posts under Articles 9(2) and 10(2) of the European Convention on Human Rights (“ECHR”).
The Law
It was accepted that Ms Higgs’ beliefs were protected beliefs under the EqA (see Forstater v GCD EuropeUKEAT/0105/20 [2022] ICR 1). It was also accepted that Ms Higgs had the right to publicly express those beliefs pursuant to Articles 9(1) and 10(1) ECHR. The School was only objecting to the manner of her expression.
The relevant question to determine if Ms Higgs’ dismissal was directly discriminatory under s 13(1) EqA was, whether the employer had an objective justification for its response to her expressing her beliefs via the Facebook posts. That was the effect of Page V NHS Trust Development Authority [2021] EWCA Civ 255, in which Underhill LJ also wrote the lead judgment.
In Page, an employee was dismissed for expressing controversial views in media interviews. His claim for direct discrimination under s 13 EqA on grounds of religion or belief was dismissed. The Court of Appeal in Page held that a dismissal in response to an employee’s manifestation of their belief was not to be treated as having occurred “because of” that manifestation if the dismissal was an objectively justifiable response to the inappropriate way in which the belief was manifested. Page introduced a new requirement of “objective justification” into the causation element in s 13(1) EqA. That test was held not to be substantially different from Article 9(2) ECHR.
In Higgs, Underhill LJ accepted that his decision in Page did not clearly explain why an objective element was introduced into s 13(1) EqA. He provides two explanations in Higgs:
- on ordinary principles of domestic construction, manifestation of a protected belief must be subject to some limitation. Article 9(2) ECHR provides the most appropriate limitation (paras 85-88 and 92).
Decision
The School sought to justify Ms Higgs’ dismissal on the basis that the posts in question were offensively expressed and included insulting references to the promoters of gender fluidity and “the LGBT crowd” which were liable to damage its reputation in the community. The posts had been reported by one parent and might be seen by others.
The Court rejected that argument. It found that the EAT was wrong to order remittal on the dismissal claim. It held for itself that Ms Higgs’ dismissal was not objectively justified and, therefore, constituted unlawful direct discrimination on the ground of religion or belief. The dismissal was disproportionate for the following reasons (paras 158-166):
- The language of the posts was not grossly offensive. Viewed in context, the language was not primarily intended to incite hatred or disgust for homosexuals or trans people. It was a “series of derogatory sneers” and “stupidly rhetorical exaggeration”. It was a “long way from the direct attack on homosexuality” in Lilliendahl v Iceland 29297/18 [2020] ECHR 931;
- The majority of the language was not Ms Higgs’ own words; it was the language of others. She made clear that she did not agree with the language. This was relevant to the degree of culpability;
- There was no evidence that the School’s reputation had so far been damaged. The concern was limited to potential future damage. There was no possibility that readers of the posts would believe that they represented the School’s own views. The risk of widespread circulation of Ms Higgs’ beliefs was speculative at best. The posts were made on her personal Facebook account, in her maiden name, to a limited audience, and with no reference to the School. By the time of the hearing, only one person was known to have recognised Ms Higgs;
- There was no reason to doubt Ms Higgs’ assertion that she would not let her views influence her work. There was no evidence that she had expressed her views in the workplace nor treated gay or trans pupils differently. She was a long-standing employee who had no complaints made about her work.
The Court emphasised that there is no universal rule that justifies dismissing an employee simply because they lack “insight” into the consequences of their actions in making such posts online. There are genuine reasons why an employee may find it difficult to acknowledge fault where, for example, they manifest a deeply held belief.
Reflection
The decision is a victory for free speech advocates. As the Court itself noted, the protection of free speech is a “cardinal principle” of the common law that covers “not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative” (Redmond-Bate v Director of Public Prosecutions [1999] EWHC Admin 733). It should be noted, however, that the Court’s decision was based on a delicate balance of factual considerations which, had they been otherwise, may have led to a different outcome.
Where does this leave the employer who seeks to make a genuine and reasonable decision to dismiss an employee who manifests a view in an objectionable way? The Court clarified that if the dismissal is motivated not by the expression of the belief itself but by something objectionable in the way in which an employee expresses it, then the dismissal will be lawful if, but only if, the employer shows that it was a proportionate response to the objectionable manner of expression (para 175(2)).
The employer’s failure in Higgs was that neither the language nor the risk of reputational damage were sufficient to warrant dismissal. This case is a message to employers that there is a relatively high threshold with regards to egregiously offensive language. Employers should be willing to accept their employees expressing their views in strong terms, unless and until the language reaches the unacceptable threshold.
Furthermore, it appears the courts are unlikely simply to accept an employer’s word of reputational damage in manifestation cases. Employers would be well advised to thoroughly investigate the extent to which reputational damage has occurred or is likely to occur. It was relevant in Higgs, for example, that readers were highly unlikely to identify Ms Higgs’ post with the School. Drawing an analogy with justification in indirect discrimination claims, employers will need to produce cogent evidence that there is more than a speculative or limited risk. For example, would a Google search of the school’s name bring up the employee’s posts? Have the posts been shared more widely? Has more than one complaint been made? Has there been an effect on the school, staff or children? Is it clear the views expressed are personal to the employee or could the posts be interpreted as representing the school?
An employer’s concern of distancing itself from controversial views against the backdrop of unsettled and heated social debates is understandable. Higgs is a strong reminder, however, that a democratic society involves a plurality of views. An employee’s right to express those views will not be interfered with in the absence of compelling evidence that justifies an employer’s sanction.
Whilst every effort has been taken to ensure that the law in this article is correct, it is intended to give a general overview of the law for educational purposes. Readers are respectfully reminded that it is not intended to be a substitute for specific legal advice and should not be relied upon for this purpose. Please also note that this article represents the opinion of the author and does not necessarily reflect the view of any other member of chambers.
