UK: Discrimination on Religious or Philosophical Belief
Authors: Robert Hill, Corinna Harris, and Sophie Jackson
The Court of Appeal has ruled that an employee’s dismissal for Facebook posts criticising the teaching of “gender fluidity” was discriminatory.
Mrs. Higgs, a School Pastoral Administrator and Work Experience Manager, was dismissed after the school received complaints about her Facebook posts criticising the nature of sex education in school, particularly the teaching of “gender fluidity”. The school considered that someone reading the posts could reasonably consider that she not only believed that gender fluidity should not be taught in schools but also had a negative attitude towards the LGBTQ+ community, and trans people in particular.
Mrs. Higgs subsequently brought claims for discrimination and harassment due to her protected beliefs.
The Court of Appeal found that her dismissal was not objectively justified and amounted to direct discrimination on the grounds of religion or belief. While the language used in her posts was objectionable, it was not “grossly offensive,” and her dismissal was a disproportionate response. The Court concluded that there was no evidence that the reputation of the school had been damaged, and the school accepted that there was no possibility that readers of the posts would believe that they represented the school’s views.
Key Action Points for Human Resources and In-house Counsel
This is a significant decision on whether or not the disciplinary action taken by an employer – in this case dismissal – is lawful where the manifestation of an employee’s beliefs may be considered by others to be objectionable.
These cases are fact specific. The fact that the language used in the posts was not “grossly offensive” was particularly significant. The nature and circumstances of the posts were also significant: they were not written by her, they were reposted; she used her personal account which was in her maiden name (which she did not use at school); there was no reference to the school and, importantly, there was no evidence the school suffered actual reputational damage.
