Case study: Higgs v Farmor’s School – religion and belief discrimination

This was originally published in Charity Finance magazine.

The facts

Farmor’s School received a complaint concerning its pastoral administrator and work experience manager, Ms Higgs, who had been employed for six years and had a clean employment record.

The complaint was regarding her Facebook posts. Her Facebook account was in her maiden name, and was private. The posts largely consisted of “re-posts” of material that was critical of sex education and the teaching of same sex relationships and gender fluidity. 

During the school’s investigation, Ms Higgs stated that she had not, and would not, express her views in school or in interactions with pupils. She also said “I know that there are transgenders and gays who do have the same beliefs as me. … I am not against gay people, it doesn't say that”.

After the investigation and disciplinary process, the school dismissed Ms Higgs based on the following: the Facebook posts may harm the school’s reputation; she used inappropriate language in the posts; the posts called into question her suitability to work with children and young people; and her online persona was not consistent with the professional image of someone working at the school.

The case made its way to the Court of Appeal, where Ms Higgs was successful. 

The legal position

From a legal perspective, less favourable treatment due to religion or belief is classed as direct discrimination. However, if the less favourable treatment is not motivated by what is said, but by something objectionable in the way in which it was said, then it is not classed as discrimination. That said, an employer still needs to show they actioned a proportionate response. 

The Court of Appeal decision

The Court made a number of findings:

• The language used in the posts was not grossly offensive. Instead, there were a series of derogatory sneers, as well as stupidly rhetorical exaggeration. In addition, the offensive language was not in fact used by the Claimant, but formed part of the original posts that the Claimant re-posted.
• The risk to the school’s reputation was speculative at best, and there was no evidence that the reputation of the school had been damaged. The extent of the reputational damage was the fear that the Claimant might express homophobic or transphobic attitudes in the workplace. 
• Even if someone who read Ms Higgs posts might fear she would let her views influence her work, neither the disciplinary panel nor the employment tribunal believed that she would actually do so. 

Considering the above, the Court of Appeal concluded that dismissal was not a proportionate response to Ms Higg’s conduct. Whilst her Facebook posts may have been unwise, they did not justify dismissal. 

Lessons learned

Although this case could potentially cause problems when seeking to manage workplace conflicts, employers can learn some important lessons from it:

• It is difficult to establish that “the way they said it” is objectionable. As the Court said: “an employer does not have carte blanche to interfere with an employee’s right to express their beliefs simply because third parties find those beliefs offensive and think the worse of it for employing them”.
• Views expressed privately and to a limited audience (as with Ms Higgs’ Facebook activity) will be treated differently to views expressed publicly or where there is a risk the views may be taken to be the employer’s. 
• Employers need to take care not to make assumptions about whether protected beliefs are inherently homophobic or transphobic. It is important that the actual language used is analysed without the use of stereotypes. 
• A lack of insight on the part of the employee, for example regarding the impact of their language on others, may justify a more serious sanction. 
• In order to rely on reputational impact, evidence of reputational damage will place the employer in a stronger position than if there is speculative or remote risk. 

Conclusion

The number of cases involving conflicting views in the workplace are steadily increasing. Often, employee views are expressed privately, but do not align with an employer’s values or mission. We are also seeing increasing conflict between employees’ differing views. These conflicts present a challenge for employers trying to achieve a harmonious workplace, protect beneficiaries (if the employer is a charity), and protect the reputation of the organisation. Whilst the Higgs case demonstrates how employers can get these difficult situations wrong, it also provides helpful guidance as to what can be done, the options available to employers, and areas of particular risk. 

The employment team at Stone King are experienced in supporting organisations as they navigate these difficult situations, so please do get in touch.