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In recent years, a number of the high-profile cases on religion and belief discrimination have grappled with the complicated and controversial subject of gender identity.  In the recent case of Higgs v Farmor’s School, the Court of Appeal has had to look at this issue once again.

The facts

Mrs Higgs, a practising Christian, worked in a school as a pastoral administrator.  She was dismissed from her job after reposting comments and articles on her personal Facebook account which called into question current practices in relation to the provision of sex education in primary schools.  The posts reserved particular criticism for teaching practices around ‘gender fluidity’ and same-sex marriage.  After her dismissal, Mrs Higgs brought claims for religion and belief discrimination.

The ET’s decision and Mrs Higgs’ appeal

Initially, Mrs Higgs’ claims were unsuccessful.  Although her beliefs were found to be protected under the law, the Employment Tribunal concluded that she had not been dismissed because of those beliefs. Instead, it was because the school was concerned about the damage to its reputation that might arise from parents and others seeing the posts in question.  

When Mrs Higgs appealed, the Employment Appeal Tribunal formed the view that her Facebook posts were potentially a reasonable manifestation or expression of her protected beliefs.  As a result, the EAT initially said the case should be reheard, so that the Employment Tribunal could properly consider these matters.  For example, if the Facebook posts are an expression of Mrs Higgs’ beliefs, are they reasonable or objectionable?  Could the decision to dismiss her be justified as a proportionate response to the posts in question?  In effect, the ET would need to conduct a delicate balancing exercise between Mrs Higgs’ basic human right to freedom of express and any justification defence put forward by the school.

Mrs Higgs was not satisfied with the EAT’s decision, even thought it was arguably in her favour.  She took her case to the Court of Appeal, arguing that no further hearing by the ET was required.  Instead, the Court of Appeal was persuaded that the decision to dismiss Mrs Higgs was inevitably disproportionate, given the nature of the Facebook posts and the lack of any real evidence that the posts damaged the school's reputation or affected Mrs Higgs’ ability to do her job.  As to the posts themselves, whilst they were considered by the Court of Appeal to be unwise, they were not considered to be so objectionable as to justify her dismissal.

A nuanced picture is emerging

As a result of this and other similar cases, a complicated and fact-sensitive picture is emerging. When confronted with situations of this nature, employers will need to consider very carefully the precise actions of the employee, their connection with any underlying religion or belief, the extent to which they could be said to be either reasonable or objectionable and the grounds on which any prospective disciplinary action (up to and including dismissal) could be said to be justified.  The thought processes required are likely to be very complicated.  

If you need help with a complicated case of this nature, please get in touch.‍