School employee’s dismissal due to reputational risk of Facebook posts was belief discrimination

Court of Appeal: dismissal was not a proportionate response and could not be justified.

In an important ruling, the Court of Appeal has made clear that dismissal for expressing protected beliefs, even when others may be offended by those beliefs, will be unlawful unless the dismissal is a proportionate response.

This follows the 2023 decision of the Employment Appeal Tribunal (EAT) to send the case back to the Employment Tribunal to reconsider various elements of the claim in the light of human rights law, including whether the dismissal was a proportionate response.

For further detail of the EAT judgment and the relevance of human rights law when considering protected belief claims, please see our previous article: Was dismissal of school employee for gender-critical Facebook posts discriminatory?

Case details: Higgs v Farmor's School (Court of Appeal)

Mrs Higgs was a pastoral administrator and work experience manager at a secondary 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”.

Mrs Higgs was dismissed after a disciplinary process. 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.

An employment tribunal dismissed Mrs Higgs’ claims, stating that she was dismissed not because of her protected beliefs but because of the way she expressed them, which could have caused reputational damage to the school.

On appeal, the EAT held that the tribunal had failed to consider whether, in the light the human rights to freedom of thought, conscience and religion and freedom of expression, the dismissal was a proportionate response to the way Mrs Higgs expressed her beliefs. The EAT remitted the case back to the tribunal.

Court of Appeal: dismissal was disproportionate

The Court of Appeal agreed with Mrs Higgs that there was no need to remit the case back to the tribunal. Instead it substituted a finding that the school's decision to dismiss was direct belief discrimination. This was on the basis that the posts were a manifestation of a protected belief and the school’s response was disproportionate in the circumstances.

The Court of Appeal set out three considerations which may mean a dismissal to protect an employer’s reputation in a case of this kind is proportionate:

1. The subject-matter of the expression of opinion or belief relates to the employer’s business: a statement of the employee’s views about matters which have nothing to do with the employer’s business is less likely to damage its reputation than a statement about matters which are central to it.

2. The employee expresses their beliefs in “egregiously offensive or insulting language”: the threshold of offensiveness should be high and protection should not be lost merely because the employee has expressed themselves intemperately.

3. There is a risk that the views can be imputed to the employer rather than being clearly personal: this is particularly key where it is important for the employer maintain institutional neutrality on the issue in question and the employee is in a senior role.

In this case, it was unlikely that Mrs Higgs could be linked to the school by members of the public reading her posts, there had been only one complaint from a parent who knew Mrs Higgs worked at the school, Mrs Higgs had reposted the words of others and stated in the disciplinary process that she did not agree with the language used, the reposts were unlikely to have been seen by many people, and the school’s concern was mainly about what readers might wrongly infer from the posts rather than the language actually used. The Court of Appeal concluded that neither the language in the posts nor the reputational risk was capable of justifying the dismissal.

The Court of Appeal did not go on to decide whether the dismissal was also unfair but commented it was not arguable that dismissal was a proportionate sanction for Mrs Higgs’ conduct.

Key learning points for employers considering dismissal for reputational damage

Employers should be aware that employees may be protected under the Equality Act from action taken because they have expressed offensive and controversial beliefs. Case law indicates that there will be a fairly high bar for employers to show that a dismissal due to reputational risk was lawful where the views expressed are protected beliefs.

When considering dismissal due to reputational damage or the risk of such damage from social media posts, employers should ensure that:

- Evidence on actual and potential reputational risk is part of the investigation and put to the employee in the disciplinary hearing alongside other evidence, rather than relying on unsupported speculation about possible risks; and

- Careful consideration should be given to:

o How far the posts relate to the employer’s business;
o Whether the language used is highly offensive or merely intemperate; and
o Whether the views are likely to be taken to be those of the employer.

The risk of unlawful stereotyping in protected belief cases

The Court of Appeal made clear that there is a risk that employers will directly discriminate against an employee on the basis of a protected belief where their decision making is significantly influenced by a stereotype that the employee also holds other apparently related views. For example, an assumption that an employee with gender-critical views is hostile towards transgender people, or that an employee who does not believe in same sex marriage is hostile towards gay people.

It is important that employers focus on the views actually expressed by an employee when considering disciplinary allegations concerning expressions of belief, rather than acting on the basis of their own or a third party’s incorrect assumptions about those views.

When dealing with disciplinary allegations of this kind, it is advisable to seek specialist legal advice at an early stage to mitigate the risk of claims.