Dismissal for expression of protected beliefs was “unquestionably disproportionate”

The Court of Appeal has ruled that the dismissal of a Christian employee for sharing gender-critical posts in a private Facebook group was direct discrimination because of her beliefs. 

The Claimant, Kristie Higgs, had posted messages objecting to Government policy on sex education in primary schools because of its promotion of gender fluidity and its equation of same-sex marriage with marriage between a man and a woman. It was accepted by all sides that these amounted to protected beliefs under the Equality Act.

Ms Higgs was last in court at an Employment Appeal Tribunal hearing almost two years ago, when it heard her appeal against the employment tribunal’s rejection of her religious discrimination claim against the state secondary school where she had worked. In a decision published in June 2023, the EAT overturned the tribunal’s decision, because it had taken the wrong legal approach when analysing the evidence. But, unlike the Court of Appeal, it did not substitute its own decision on Ms Higgs’ claim. Instead, it ordered the tribunal to make a new decision, after considering the guidance which it set out in its judgment.

Ms Higgs took the unusual step of appealing against this decision, arguing that this was not a case where more than one outcome was possible, and so the EAT should have made a positive decision that the School had discriminated against her. In a long and complex judgment, the Court of Appeal has accepted this argument in relation to her dismissal, deciding that it was “unquestionably a disproportionate response” to the offending posts.

What is the correct legal approach?

This was a case where the employer was objecting to the way an employee’s beliefs were manifested, rather than the beliefs themselves. Recent case law has established that in this situation, even where the claim is for direct discrimination, it is possible for the employer to justify any unfavourable treatment if it was a proportionate response. In other words, the courts are required to balance the legitimate interests of the employer against the employee’s rights under articles 9 and 10 of the Human Rights Convention (ie freedom of religion, and freedom of speech respectively).

The EAT’s decision in this litigation set out detailed guidance to assist tribunals in carrying out this exercise (see our earlier post here). The Court of Appeal confirmed that this guidance was a useful summary of the current case law, but was cautious about being too prescriptive in defining a list of factors tribunals should consider in all future cases.

What factors did the Court of Appeal bear in mind?

Where an employer was concerned about the effect of the offending posts on its reputation, the Court of Appeal said there were three key considerations to bear in mind:

• Subject matter: the impact on the employer will be greater where the expression of beliefs is connected to the workplace in some way. In this case, the posts related to sex education in schools, so there was clearly such a connection.
•  Manner of expression: the use of offensive or insulting language will create a greater risk of reputational harm than beliefs which are expressed in a more temperate way.
• Capacity in which views expressed: the risk of reputational harm will normally be reduced if it is clear that the views are expressed in a personal capacity.

Why was Ms Higgs’ dismissal disproportionate?

Court of Appeal said there were four key reasons for its decision:

• The posts were not “grossly offensive” and did not appear to be primarily intended to incite hatred of homosexual or trans people.
•  With one exception, the language to which the employer objected was in material that Ms Higgs had reposted. While that did not absolve her of responsibility for re-posting this material, it was relevant to her degree of culpability.
• The disciplinary panel accepted that the School’s reputation had not been damaged at the time of its decision.
• Neither the panel nor the employment tribunal believed that her views would have a detrimental effect on the way she carried out her work at the School.

Lord Justice Underhill, who gave the leading judgment, concluded:

“Taking those reasons together, I do not believe that dismissal was      even arguably a proportionate sanction for the Claimant's conduct. It was no doubt unwise of her to re-post material expressed in (to use the ET's words) florid and provocative language with which she did not agree, and in circumstances where people were liable to realise her connection with the School. But I cannot accept that that can justify her dismissal, and still less so where she was a long-serving employee against whose actual work there was no complaint of any kind.”

Conclusion

This ruling reinforces the need for courts to balance the competing interests of employers and their workers when it comes to the expression of controversial beliefs. As it explains, there are a range of factors which will be relevant in making this assessment, which will differ from case to case.

For all the prominence this decision has received, arguably it should have been relatively straightforward to decide which side of the line the employer’s actions fell. However, the Court of Appeal’s judgment contains a number of additional observations which may be helpful in resolving other more complex “clash of rights” disputes, even if they were not of central relevance to its conclusions in this case.

These include the importance of being objective about what the offending words actually say, rather than focusing on what people might read into them. It also endorses guidance from the Equality and Human Rights Commission about the dangers of stereotyping people who express particular philosophical or religious beliefs.

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