Balancing beliefs and the workplace: Court of Appeal judgment

Facts

Kristie Higgs was a pastoral administrator at a secondary school and is a Christian. She created several facebook posts, including reposting content, criticising relationship and sex education in schools specifically the concern that children will be taught that "same sex marriage is exactly the same as traditional marriage" and that "gender is a matter of choice, not biology". A parent at the school emailed the headteacher complaining that Mrs Higgs had posted "homophobic and prejudiced views against the lbgt community on facebook". The school conducted an investigation, suspended Mrs Higggs and subsequently dismissed her for gross misconduct. Mrs Higgs began proceedings in the Employment Tribunal for direct discrimination and harassment on the grounds of religion or belief, claiming that she'd been dismissed because of her religious beliefs that gender is binary, and that same-sex marriage cannot be equated with marriage between a man and a woman.

Employment Tribunal (ET) and Employment Appeal Tribunal (EAT) decisions

The ET found that Mrs Higgs had been dismissed by the school because of possible reputational damage as her actions could be seen as homophobic and transphobic and that she was not dismissed because of her beliefs. The EAT disagreed and allowed her appeal emphasising the need for a proportionality assessment to determine if the school's actions were necessary for the protection of the rights and freedoms of others under the European Convention of Human Rights. The EAT ordered that the case should be remitted to the ET but Mrs Higgs appealed to the Court of Appeal arguing that the EAT should have upheld her claim and that it was bound to hold that her treatment was not an objectively justifiable response to her having made the posts.

Court of Appeal decision

The Court of Appeal allowed Mrs Higgs' appeal. It held that whilst the school was entitled to take objection to the social media posts given that the language was gratuitously offensive to certain groups (using what the court described as "stupidly rhetorical exaggeration") the school had responded disproportionately in dismissing her. The posts were made on her personal account, in her maiden name and made no reference to the school. The school's treatment of her was not proportionate to the perceived reputational risk. Her conduct was unwise but did not justify her dismissal – she was a long serving employee against whose actual work there was no complaint of any kind.

Key implications for employers

• The decision reinforces the complex field to navigate in balancing competing philosophical and religious beliefs. The bar is low for the range of beliefs that are protected under the Equality Act 2010, and some of those beliefs may be offensive or shocking to some.
• It reinforces that employers need to take careful consideration before launching into any disciplinary action on the back of an employee's manifestation of their beliefs. Any limitation on the manifestation of a belief needs to be objectively justified. Employers should ensure any responses to such issues are objective and proportionate. 
• Employers should be wary of simply relying on "potential reputational damage" as a reason for taking disciplinary action – as in this case the employer was unable to demonstrate that it did, or could have, suffered actual reputational damage. This is particularly true where such beliefs are posted on a private social media account with no link to the employer.

If you have any questions on this article or require any employment law assistance please contact Paul Reeves, Leanne Raven or your usual Stephenson Harwood contact.