Was dismissal of school employee for gender-critical Facebook posts discriminatory?

EAT: tribunal must consider whether dismissal was because of a justified objection to the way protected beliefs were manifested.

Readers may have seen in the media over the last few years coverage of court cases brought by individuals alleging they have been discriminated against because of a so-called gender-critical belief. Very simply put, this is a belief that people cannot change their sex.

For further details of a recent case see School chaplain was not discriminated against because of his religious belief after preaching that pupils did not have to agree with "LGBT ideologies" (available on our website).

Update on Forstater case

The EAT decision in Forstater v CGD Europe and others published in June 2021 was an important case which held that the claimant’s gender-critical beliefs were protected under the Equality Act 2010. The employment tribunal had previously found that these beliefs did not qualify for protection because they were not worthy of respect in a democratic society, incompatible with human dignity and conflicted with the fundamental rights of others. See our article Claimant's gender-critical belief is protected under the Equality Act (available on our website) for more detail on this decision.

In July 2022, an employment tribunal found that Ms Forstater had been directly discriminated against because of her beliefs when CGD decided not to renew her contract, not to offer her an employed role, and removed her profile from their website after she had posted her views on social media. The tribunal found that the claimant’s tweets were a manifestation of her protected beliefs and were not done in a manner which was inappropriate or to which objection could reasonably be taken, even though they were capable of causing offence.

The tribunal last month published its remedy judgment, awarding Ms Forstater in the region of £106,000, including an injury to feelings award of £25,000, aggravated damages of £2,000, net loss of earnings of £14,000, and loss of chance of obtaining an employed role of £50,000.

Is dismissal for expressing protected beliefs discriminatory?

Last month, the EAT published its judgment in a further case considering disciplinary action taken against an employee who expressed gender-critical and other protected beliefs on social media.

Case details:  Higgs v Farmor's School

Mrs Higgs was a pastoral administrator and work experience manager at an academy (the school). Her role included work with pupils who had been removed from class and who might be considered vulnerable.

Mrs Higgs had expressed her views on Facebook that primary schools should not teach that all relationships are equally valid, that gender is a matter of choice, and that same sex marriage is the same as “traditional” marriage. A parent complained that Mrs Higgs’ posts contained views prejudiced against LGBT people and expressed concern that she might “exert influence over the vulnerable pupils that may end up in isolation for whatever reason”.

The employer carried out a disciplinary process, after which Mrs Higgs was dismissed. The reason for dismissal was that Mrs Higgs had breached the school’s code of conduct by posting material which could lead readers to infer that she held discriminatory beliefs and that that there was a potential risk to the school’s reputation.   

Mrs Higgs brought claims of direct religion or belief discrimination and harassment in the employment tribunal.

The employment tribunal found that Mrs Higgs had protected Christian beliefs, including that marriage is a “divinely instituted life-long union between one man and one woman”. She was also found to have protected lack of belief in gender fluidity, the possibility of changing biological sex/gender, and in same sex marriage.

However, the tribunal dismissed her claims, finding that the school’s actions were not because of the beliefs themselves, but because the school “felt that the language used in those posts might reasonably lead someone who read them to conclude that she held views (homophobic and transphobic) that she expressly rejected”. 

Mrs Higgs appealed the decision and the EAT allowed her appeal, remitting the case back to the tribunal to decide the claim following the guidance provided by the EAT.

The impact of the Human Rights Act on employment tribunal claims

Claimants are not able to bring human rights claims in the employment tribunal and they are only able to do so in the civil courts where the respondent to the claim is a public authority for the purposes of the Human Rights Act 1998 (HRA).

However, courts and tribunals are required under the HRA to read and give effect to UK legislation in a way which is, so far as possible, compatible with the rights conferred by the European Convention on Human Rights (ECHR). In practice, this means that employment tribunals will consider human rights law where relevant when determining claims.

Where an employee has been sanctioned or dismissed for expressing their beliefs on social media, a tribunal will consider the claim in the light of protections for freedom of thought, conscience and religion under Article 9 ECHR, and freedom of expression under Article 10 ECHR. These rights are not absolute; they can be interfered with by a public authority where the restriction is prescribed by law, pursues a legitimate aim and is necessary in a democratic society.

In Mrs Higgs’ case, the EAT held that the tribunal had not properly considered the claim in the light of these human rights.

The tribunal should first have considered whether the claimant’s social media posts were a manifestation of her protected beliefs, in that there was a sufficiently close or direct connection between Mrs Higgs' protected beliefs and her Facebook posts. The EAT stated that, if it had done so, the tribunal would have found the posts to be a manifestation of the beliefs.

Secondly, the tribunal should have considered whether the school’s actions were because of the manifestation of her protected beliefs or because of a justified objection to the manner of expressing those beliefs.

Thirdly, if the tribunal decided that the school’s actions were because of a justified objection to the posts, it should have gone on to consider whether the disciplinary steps taken were a proportionate means of achieving a legitimate aim. This includes considering:

• if the aim is sufficiently important to justify the limitation of the right;
• if the limitation is rationally connected to that aim;
• whether the aim could be achieved through a less intrusive limitation; and
• whether the importance of the aim is outweighed by the severity of the impact of the limitation on the individual.

When will disciplinary action for expressing protected beliefs be proportionate?

The EAT provided in its judgment some very useful guidance on the factors which should be considered when deciding if action taken by an employer because of a justified objection to the manifestation of protected beliefs is proportionate in the circumstances. These include (in the context of social media posts):

• the tone, quantity and extent of the posts;
• the likely audience of the posts;
• the extent and nature of the intrusion on the rights of others in the posts, and any consequential impact on the employer’s ability to run its business;
• whether the employee has made clear that the views expressed are personal, or whether they might be seen as representing the views of the employer;
• any potential power imbalance, given the nature of the employee’s role and the position of those whose rights are intruded upon in the posts; and
• any potential impact of the posts on vulnerable service users or clients.

Comment

It will be interesting to see how this case is finally decided. Decisions in such cases are highly nuanced and fact-specific. However, this case does in part address the increasingly common argument from employers that it isn’t what the employee thought or said that was in issue but the way they expressed it.  Whether a particular employer’s objection to social media posts expressing an employee’s protected belief is justified will depend on the circumstances of the claimant, including their role and profile with stakeholders, and the circumstances of the employer, including the risks of harm to the employer’s reputation and to vulnerable people and children.

For internal disciplinary processes, this means ensuring that careful thought is given in the decision-making process to why the social media posts are objected to, and what particular risks can be evidenced or foreseen as likely in relation to service users and reputational damage. It also means considering, and documenting consideration of, alternative steps or sanctions which might achieve the aim of the employer without impacting as severely on the rights of the individual.