Freedom of speech, European Convention on Human Rights, and direct discrimination – Higgs v Farmor’s School
Graduate solicitor apprentice in the employment team, Megan Knight takes us through the details of a complicated discrimination case that covers freedom of speech, brings reference to the European Convention on Human Rights and results in a landmark ruling by the Court of Appeal.
The claimant in the case was employed as a counsellor in a secondary school. She was dismissed for gross misconduct following a series of Facebook posts on her personal account that were considered homophobic and transphobic. The claimant was a practising Christian.
The Facebook posts concerned the claimant’s criticism about the teaching of relationship education in primary schools, expressing her gender-critical views as well as her beliefs as to traditional marriages.
The Facebook posts were brought to the attention of the respondent when a concerned parent at the school complained to the Head Teacher. An investigation was conducted which led to the claimant being dismissed.
The claimant’s Facebook account was in her maiden name, rather than the name that she used for her employment at the school; and the account contained no identifying information which would connect the claimant to the school.
The claimant brought a claim to the Employment Tribunal for discrimination and harassment on the grounds of her religious beliefs. This follows the earlier ruling of Forstater v GCD Europe.
Employment Tribunal decision
The ET acknowledged that the claimant did hold protected philosophical beliefs under the Equality Act 2010; but dismissed her claim after finding that the respondent had not directly discriminated or harassed the Claimant because of her religion.
Instead, it held that that the Respondent dismissed her due to the manner in which she expressed her views and that this might have caused reputational damage to the school.
Employment Appeal Tribunal decision
The EAT allowed the claimant’s appeal on the grounds that the ET had failed to consider whether her dismissal was a proportionate response to the way she had expressed her beliefs, as per the European Convention on Human Rights.
The EAT sent the case back to the tribunal.
Unhappy, the claimant appealed, arguing that the EAT should have upheld her claim rather than referring the matter back to the ET.
The EHRC was granted permission to intervene in the appeal.
Court of Appeal decision
The CoA upheld the claimant’s appeal, finding that the decision to dismiss her was not in fact proportionate; and therefore, constituted unlawful direct discrimination.
CoA decided that the Facebook posts were a distance away from directly attacking the LGBTQ+ community; that there was no possibility that any readers of the post would see her views to be reflective of those of the school.
CoA reaffirmed that there is no legal “right not to be offended”, and that freedom of speech necessarily entails the freedom to express opinions that may shock and offend.
The ruling has confirmed that the Equality Act protects traditional Christian beliefs on social issues.
Unusually, following EU precedent, CoA has introduced the concept of objective justification into direct discrimination cases based on religion and belief.
Employers should be willing to accept that employees might express views in strong terms, unless and until the language reaches an “unacceptable threshold.” The bar here is going to be fairly high. Even if colleagues are deeply offended by remarks such as those made in Higgs, employers will need to act proportionately if they are to avoid liability for discrimination.
This landmark CoA ruling provides authoritative guidance on how the law can protect the expression of religious and philosophical beliefs.
Author: Megan Knight, employment
