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In the case of Higgs v Farmor's School and another [2023], the Employment Appeal Tribunal (EAT) allowed an appeal against an employment tribunal's decision that a Christian employee was not directly discriminated against or harassed because of her protected beliefs, including that gender cannot be fluid and that an individual cannot change their biological sex or gender, where her employer dismissed her because of Facebook posts that could have resulted in readers reasonably believing she held homophobic and transphobic beliefs.
The Claimant, Mrs Higgs, is a Christian and was employed as a pastoral administrator and work experience manager by Farmor’s school. She worked with pupils and had contact with parents. The school received a complaint from a parent regarding a Facebook post, which was a reposting of one written by someone else to which Mrs Higgs added “Please read this! They are brainwashing our children!” There was also a link to a petition and these related to the teaching in schools of same-sex relationships, same sex marriage and gender being a matter of choice. Mrs Higgs had also made some other similar posts and she was subsequently dismissed for gross misconduct for breaching the school’s code of conduct. The school argued that there was potential risk of harm to their reputation.
Mrs Higgs, therefore, claimed that she had been directly discriminated against and harassed on the ground of religion or belief. The Employment Tribunal accepted that all her beliefs were protected by the Equality Act 2010. Mrs Higgs’ beliefs that gender cannot be fluid and that an individual cannot change their biological sex or gender were worthy of respect in a democratic society and could therefore be protected beliefs. However, it was also decided that she had not been directly discriminated against or harassed because of those protected beliefs. She had been dismissed due to the provocative language used in her posts; therefore, she may be perceived as holding homophobic and transphobic beliefs that would not be protected.
The EAT, however, disagreed and held that the employment tribunal had failed to consider whether the school's action was because of or related to the manifestation of her own beliefs. To determine whether the employee's actions amounted to a manifestation of her beliefs, it should have considered whether there was a sufficiently close or direct link between her protected beliefs and her Facebook posts (that were relied upon by her as amounting to a manifestation of her beliefs).
If the tribunal had held that the posts were to be viewed as a manifestation of her beliefs, it then had to determine the "reason why" question. This involved asking whether the school's treatment was because of or related to the manifestation of her beliefs or because she had manifested her beliefs in a justifiably objectionable way. In answering this question, the tribunal would need to carry out a proportionality assessment and be content that the measures adopted by the employer were (1) prescribed by law and, recognising the essential nature of the employee's rights to freedom of belief and freedom of expression, that they were (2) necessary in pursuit of the protection of the rights, freedoms and reputation of others.
The employment tribunal had failed to carry out any assessment of the proportionality of the school's actions. The EAT therefore remitted the case for determination by the employment tribunal.
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