A significant legal victory has been delivered in the court of appeal, setting a crucial precedent for employee rights and employer responsibilities regarding the expression of controversial views in the workplace.
This landmark judgment has profound implications for schools and trustees, emphasising the delicate balance between maintaining a respectful, inclusive environment and protecting employees’ rights to both hold and express their beliefs.
Case background
Kristie Higgs, a school employee, was dismissed for gross misconduct after the school received a single complaint about her personal Facebook posts that it decided were homophobic and transphobic.
Higgs issued a claim, asserting that her dismissal was due to her religious beliefs, and her stance against ‘gender fluidity’ and the concept that people cannot change their biological sex, which are protected under the Equality Act 2010.
Initially, the employment tribunal (ET) dismissed her claims of discrimination and harassment, concluding that her dismissal was due to the potential reputational damage her posts could cause the school, rather than her actual beliefs.
However, the employment appeal tribunal (EAT) decided the ET had failed to consider whether her dismissal was a proportionate response to the way she expressed her beliefs, as required by the European convention on human rights (ECHR).
The EAT remitted the case to the ET to determine whether the school’s actions were objectively justified. Before that hearing took place, Mrs Higgs appealed to the court of appeal.
Court of appeal’s decision
The court of appeal found the school’s decision to dismiss Mrs Higgs was not proportionate and amounted to unlawful direct discrimination. The court emphasised that while her Facebook posts may have used intemperate language, they didn’t directly attack the LGBT community and weren’t intended to incite hatred or disgust.
The court noted there was no possibility readers of her posts would believe her views represented those of the school. In addition, even if parents had read the posts and thought her views might make her unfit for her job, the school could have mitigated this by issuing a clarifying statement.
Importantly, there was no suggestion Mrs Higgs was unfit to work in a school. She’d worked there for six years without any complaints about her performance and the school accepted that her views had not led to her discriminating against LGTB pupils.
Implications for schools
This judgment makes it clear that robust speech is protected as a manifestation of a religious or philosophical belief. Employers will only be able to take action for something an employee has said if it is objectionably inappropriate.
For schools and trustees, this decision highlights several key considerations:
Avoid knee-jerk reactions
Employees are entitled to hold and to express views that other people may find offensive. Don’t assume an employee who, for example, expresses gender critical views must be homophobic or transphobic and should be immediately suspended and disciplined.
Objective consideraration
What have they have said and in what context have they said it? Are their views grossly offensive? Are they likely to mean that the employee in question is likely to treat that group differently?
Where have they expressed their views?
There’s a huge difference between an employee who shares views on social media and one who expresses them at work – particularly if they are directed at children.
Schools can generally insist that their staff keep their views on political or controversial issues to themselves when interacting with children, provided they take an even-handed approach.
This should be communicated to staff via clear policies and should outline the potential consequences of breaching them.
Don’t over-egg reputational risks
Has what the employee said caused reputational harm? Is it likely that it will cause harm? Will a reasonable person assume that they are speaking on behalf of the school given their role?
Importantly, could the school deal with this in another way? In this case the court said that the school could have issued a statement making it clear that Mrs Higgs’ views did not affect her work.
How has the employee reacted to the complaint?
If the employee has crossed the line and is remorseful, it may be more appropriate to discipline rather than dismiss them. However, it’s important not to focus too much on a lack of remorse.
As the court said “there are understandable reasons why in some cases an employee may not be willing to admit that [their] conduct was wrong, or seriously wrong, particularly if it was a manifestation of a deeply-held belief”.
