Five top tips for employers following the landmark case of Higgs v Farmor’s School

To what extent can employers lawfully take action against employees who have published controversial views, which may cause offence to others, on their personal social media accounts?

The Court of Appeal recently handed down its highly anticipated judgment in the case of Higgs v Farmor’s School, in which it considered this question. In this instance, the dismissal of an employee over her Facebook posts was discriminatory.  In this blog post, we analyse how the Court of Appeal came to this decision and give you our five top tips for employers moving forwards.

Background

Mrs Higgs, a Christian, had been employed by Farmor’s School (the School) for six years as a pastoral administrator and work experience manager. In 2018, she reposted comments critiquing Government policy on the teachings of same-sex marriage and gender fluidity in primary schools. A complaint was made by a parent at the school who had viewed these posts, expressing concern as to their content and the negative impact such views could have on Mrs Higgs’ ability to carry out her role with students. The parent found the comments to be “homophobic and prejudiced”. No complaint had ever been made against Mrs Higgs’ conduct or capability prior to this event.

After an internal investigation, Mrs Higgs was subsequently dismissed by the School citing the type of language used in the post, the potential for reputational damage of the school, and the risk of such posts damaging her position of trust for the students.

Mrs Higgs brought a claim for harassment and direct discrimination against the School, arguing that she had been dismissed because of her religious and philosophical beliefs. The Employment Tribunal dismissed Mrs Higgs’ claim on the basis that the dismissal was not because of the manifestation of her beliefs but, rather, because it considered that the language of her posts might reasonably lead others to think that she held views which were homophobic or transphobic which, in turn, might damage the reputational damage of the School. The Employment Appeal Tribunal disagreed and allowed Mrs Higgs’ appeal, remitting the case to the Employment Tribunal. Mrs Higgs appealed to the Court of Appeal (the Court) on the basis that a judgment should’ve been given in her favour without the need for the Employment Tribunal to re-hear it.

The Court upheld Mrs Higgs’ appeal, finding that her dismissal was not objectively justified and accordingly, that the School had directly discriminated against her because of her religious beliefs. The Court noted that Mrs Higgs had not made similar or the same comments at work, nor had she behaved in a discriminatory way towards pupils.

Where did the School go wrong? 

An employee cannot be dismissed merely because they have expressed a protected belief that others may find unfavourable, or the way that others may react to that belief. The dismissal must relate to the “manifestation of the belief” i.e. it must relate to the way the belief was expressed to not be discriminatory. Additionally, the dismissal must be “objectively justified” i.e.  the emplpyer must be able to show that dismissal was a proportionate response to the way in which the protected belief was manifested. This is a particularly high threshold to meet.

In its judgment, the Court emphasised the lack of proportionality in the dismissal of Mrs Higgs compared with the nature of the posts that were published on her social media page. The key findings the Court made in coming to their decision were:

• Reputational Damage: The School heavily relied upon reputational risk to justify its dismissal of Mrs Higgs. However, there was no evidence adduced that demonstrated the School’s reputation had in fact been damaged by these posts. The Court considered that no one reading the posts would believe that Mrs Higgs’ views represented those of the School and, even if that were the case, a more proportional response would have been to issue a statement correcting any incorrect perceptions.
• Assumptions and Stereotyping: the Court held that an unlawful stereotype was applied by the School based on the assumption that all persons holding the views that Mrs Higgs shared on her Facebook page, must be homophobic and/or transphobic. An objective analysis of the language used was not conducted and did not support such a claim.
• Use of Personal Facebook Account: the fact that the posts were published on a private and personal social media forum with no reference to Mrs Higgs’ employment at the School was a highly relevant consideration in assessing the lack of reputational damage in this case.
• Employee’s previous record: there was no record that such views had ever been expressed within the school or had led her to be influenced in the way she carried out her role.
• “Lack of insight” argument: central to the school’s decision to dismiss was the conclusion that Mrs Higgs had no “insight” into the consequences of her actions through a refusal to take down her posts. The Court highlighted that there may be understandable reasons in some cases as to why an employee may not be willing to admit that their conduct was wrong. Unless the case is sufficiently severe itself to justify a dismissal, it will be rare that a “lack of insight” argument can be used to mark up the seriousness of an employee’s actions.

The above considerations reflect the circumstances specific to Mrs Higgs but provide useful guidance for employers when assessing what disciplinary action, if any, they are entitled to take in similar cases.

 What guidance has the Court of Appeal given for Employment Tribunals and employers navigating this sensitive area?

The Court of Appeal endorsed the following factors that employers should take into account when considering whether comments have reached a sufficiently high threshold to justify disciplinary action. The Court clearly emphasised that this is a non-exhaustive list and may not necessarily apply in all cases.

Regard should be had to:

• the content and extent of the manifestation of the belief;
• the tone used;
• the worker’s understanding of the likely audience;
• the extent and nature of the intrusion on the rights of others, and any consequential impact on the employer’s ability to run its business or organisation;
• whether the worker has made clear that the views expressed are personal, or whether they might be seen as representing the views of the employer, and whether that might present a reputational risk;
• whether there is a potential power imbalance given the nature of the worker’s position or role and that of those whose rights are intruded upon;
• the nature of the employer’s business, in particular where there is a potential impact on vulnerable service users or clients; and
• whether the limitation imposed is the least intrusive measure open to the employer.”

The Employment Tribunal’s have already begun to apply the above guidance in their assessment of claims and so it is important that employers do too.

Our five top tips from the case:

1. Dismissing an employee merely because they have expressed a protected belief which others may find offensive will most likely be unlawful. Employers, when dealing with such cases, should be careful to ensure that any action taken is a proportionate and balanced response. Avoid knee jerk reactions!
2. Context is key. Consider what, how and where the belief has been expressed from an objective perspective. Posts on private social media platforms / forums are unlikely to cause any reputational damage for a company and are therefore unlikely to meet the threshold required for disciplinary action to be justified.
3. If complaints regarding an employee’s beliefs are made, an investigation should be conducted to understand the true nature of the beliefs and the factual circumstances surrounding the complaint before deciding what action, if any, is necessary whilst ensuring that any concerns are adequately evidenced. This will help avoid any assumptions being made on an employee’s actual beliefs.
4. Give careful thought to how views expressed relate to the employee’s role / work. If you consider that there’s concern that an employee’s views may lead them to behaving in a discriminatory / harassing way at work, you will need to be able to substantiate such a concern fully.
5. Promote a tolerance of views in your workplace’s culture, this could be through amending your staff handbook / policies or conducting employee training on appropriate conduct in the workplace. Don’t shy away from taking proactive steps to prevent such issues from arising in the future.

If you would like advice on any of the topics discussed in this blog, please get in touch with us at info@torquelaw.co.uk and we’d be more than happy to assist.