Higgs vs Farmor’s School

Facts

The Claimant in this case was dismissed for gross misconduct for posting comments on Facebook which criticised the nature of sex education in schools and the teaching of ‘gender fluidity’.  The grounds for the dismissal put forward by the school were that it was felt that those reading the posts might conclude that the Claimant was hostile towards the LBGTQ+ community and trans people in particular, and that gender fluidity should not be taught in schools.  The school held that the language used was offensive to gay and/or trans people in the way that it described the conduct of ‘the LGBT crowd’ in the context of sex education in schools – which was relevant to the Claimant’s work as pastoral administrator and work experience manager.

The Claimant submitted a claim to the Tribunal for direct discrimination and harassment based on her religious beliefs under the Equality Act 2010. The Employment Tribunal acknowledged her beliefs were protected under the Equality Act 2010 but dismissed her claims, stating the dismissal was not due to her beliefs but due to the school’s concern of potential reputational harm and the offensive nature of the posts.

Employment Appeal Tribunal (EAT) Decision

On appeal, the EAT undertook a comprehensive review and concluded that the Claimant’s dismissal was not objectively justifiable and in fact did amount to discrimination.  Notably, some of the reasons put forward by the EAT included: –

• The posts, whilst potentially offensive to some, were not grossly offensive as found in other cases.
• The language used was not that of the Claimant but rather re-posted messages.  The EAT stressed that although this did not absolve her of responsibility, it was relevant to the degree of any culpability.
• There was no evidence that the Claimant’s beliefs influenced her professional conduct or that she treated students differently based on their sexual orientation or gender identity.
• The school’s concern about reputational damage was speculative, with no concrete evidence of actual harm.
• The posts made on Facebook made no reference to the school, with only one person having recognised who she was at the time of the hearing.
• The manner of expression in the posts did not reach a level that would justify dismissal.

Comment

The EAT concluded that whilst the Claimant lacked insight into the consequences of her actions (including her refusal to remove the posts), lack of insight did not in itself justify dismissal. 

This case emphasises the importance of an employee’s right to be able to express their beliefs, provided that of course such expressions do not cause any reputational damage to the employer or affect their work in any way. Moreover, should an employer ever be faced with having to assess the impact of any potential adverse expression, that they ensure their responses are proportionate and justified.