Mrs Kristie Higgs was employed at Farmor’s School as a Pastoral Administrator until she was dismissed in 2019 for gross misconduct.
Mrs Higgs’ dismissal stemmed from a complaint to the school about Mrs Higgs’ Facebook posts discussing gender fluidity and LGBT+ teachings in schools. The initial complaint involved a post Mrs Higgs had shared to her Facebook page where the content was written by a different person, the original author of the post. The complainant noted in their complaint that Mrs Higgs’ re-post showed “homophobic and prejudicial views towards the LGBT+ community”. Further investigation from the school identified more posts on the same topic, some including links to petitions. The complainant raised concerns that Mrs Higgs would find LGBT+ students at the school to be “obnoxious”. Mrs Higgs was summarily dismissed for gross misconduct due to the “inflammatory and quite extreme” language of her posts.
Mrs Higgs brought her tribunal claim under the Equality Act 2010 as she claimed to have been directly discriminated against for her religious beliefs; a protected characteristic under the Act. The Employment Tribunal initially dismissed her claims as her employer had the right to consider the potential negative impact of her views on the children and this would be a legitimate aim in dismissal.
The Employment Appeal Tribunal allowed the Appeal as the Employment Tribunal had failed to identify whether Mrs Higgs was dismissed because of the existence of her religious beliefs or the manifestation of her beliefs. The ET did not consider if the restriction of Mrs Higgs’ freedom of expression and religious beliefs was fair and balanced with the rights and freedoms of others and if law prescribed her dismissal. The EAT allowed the appeal and remitted the case back to the ET for their determination of the facts once the proportionality balances are applied. In her judgment, Justice Eady underlined the principle of the case as the following:
“First, the foundational nature of the rights must be recognised: the freedom to manifest belief (religious or otherwise) and to express views relating to that belief are essential rights in any democracy, whether or not the belief in question is popular or mainstream and even if its expression may offend.”
The ruling serves as a reminder to employers to follow fair practice and procedures when considering dismissal, to consider any possible alternatives to dismissal, and to ensure that a dismissal is only determined for fair reason. In this case, which is yet to be determined by a fresh tribunal panel it will be interesting to see the application of the test set out by the President of the Employment Tribunal in this EAT judgement and the conclusions they reach. Any employer faced with determining if an employee has breached their dignity/diversity at work policy would do well to read the guidance in this case before coming to a conclusion. Alternatively, our expert Employment team are able to advice on the correct steps to take in such a situation.
This article does not constitute legal advice. The full appeal judgment can be found here: https://assets.publishing.service.gov.uk/