Lessons in Freedom of Expression and Equality Laws from Higgs v Farmor's School
Can an employer dismiss an employee for controversial social media posts? Do contentious views enjoy protection under equality laws, and can they give rise to discrimination claims? Join me as I delve into the thought-provoking case of Higgs v Farmor's School to uncover the answers.
Uncovering the Dilemma:
Imagine a scenario where a concerned parent sends an email to a secondary school Head Teacher, expressing concern over a Facebook post made by a staff member. The post begins with a plea to "PLEASE READ THIS! THEY ARE BRAINWASHING OUR CHILDREN!" and concludes by encouraging readers to sign a petition described as being concerned to “[u]phold the right of parents to have children educated in line with their religious beliefs”.
Further investigation uncovers other Facebook posts by the staff member, reposting statements such as: "[k]indergarten and first-grade children are being primed for a gender fluid society" and "[t]hey are stealing the innocence of our children with a devious scheme to supplant traditional gender roles".
Navigating the Case:
The Head Teacher discusses these posts with the staff member, who admits making them on her personal Facebook account. When asked if the posts could be considered offensive or prejudiced, the staff member responds: "Yes, I am not against gay, lesbian, or transgender people. It's about making sure people are aware of what's going on in the [Church of England primary school attended by my son]. It's not about the schools, they are just following government policy, it's about the government". The staff member went on not say that she did not regret making the posts and that she loves all people.
The Head Teacher suspended the staff member before going on to dismiss her for making these posts on the grounds of gross misconduct.
Examining Higgs v Farmor's School:
The case of Higgs v Farmor's School was brought before the Employment Tribunal, followed by an appeal to the Employment Appeal Tribunal (EAT) in Higgs v Farmor's School v The Archbishops' Council of the Church of England.
The Power of Private Social Media Posts:
An important question in this case was whether the school had the right to discipline and dismiss the staff member for her personal Facebook posts, which made no explicit mention of the school. The answer was a resounding yes.
Privacy in the Social Media Age:
Kristie Higgs, the staff member, argued that her Facebook posts were private and punishing her for them would violate her rights under Article 8 of the European Convention on Human Rights. Article 8 states that “[e]veryone has the right to respect for his private and family life, his home and his correspondence”.
However, the Employment Tribunal determined that Mrs Higgs did not have “any real expectation” of privacy regarding her Facebook posts. Employment Judge Reed held that the “fact is that anyone posting on such a platform as Facebook effectively loses control of their posts, at least when a large number of people can access them”. Therefore, the School was “fully entitled” to take action in relation to the posts. This part of the decision was not appealed.
Unravelling Discrimination Claims:
Did Mrs Higgs experience discrimination? She argued in the Employment Tribunal that she had been unlawfully discriminated against or harassed due to her beliefs. "Religion or belief" is a protected characteristic under the Equality Act 2010. Case law has held that the belief must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.
Here, the Employment Tribunal held that Mrs Higgs’ beliefs, including her lack of belief in gender fluidity, as well as her lack of belief that someone could change their biological sex/gender, met these tests, and were protected beliefs under the Equality Act 2010. This was not appealed.
The Employment Tribunal went on to find that whilst Mrs Higgs’ beliefs were protected by equality laws, she had not suffered discrimination or harassment by Farmor’s School in relation to them. Her dismissal arose from the “florid and provocative language" used in her Facebook posts, which could reasonably give rise to the perception that she held homophobic and transphobic beliefs which would not be protected by equality laws.
Mrs Higgs successfully appealed to the EAT.
The EAT found an issue with the Employment Tribunal’s legal analysis. The Tribunal should have first considered whether there was a sufficiently close or direct link between Mrs Higgs’ Facebook posts and her beliefs, which would render those posts a manifestation of her beliefs. The EAT considered the Employment Tribunal’s findings and determined that “it has already been found that the Facebook posts in issue had a sufficiently close or direct nexus with the beliefs relied on by [Mrs Higgs] in these proceedings such as to amount to a manifestation of those beliefs”.
The Employment Tribunal should have therefore asked itself whether Farmor’s School’s treatment of Mrs Higgs was “because of, or related to, that manifestation of belief (prohibited under the [Equality Act 2010]), or whether it was in fact because [Mrs Higgs] had manifested her belief in a way to which objection could justifiably be taken”. The EAT sent the case back to the Employment Tribunal to determine this.
Assessing whether the manifestation of a belief is objectionable involves a proportionality exercise. The EAT gave guidance on the approach to be adopted when assessing the proportionality of any interference with rights to freedom of religion and belief and of freedom of expression, including that:
- 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;
- these rights are, however, qualified. The manifestation of belief, and free expression, will be protected but not where the law permits the limitation or restriction of such manifestation or expression to the extent necessary for the protection of the rights and freedoms of others; and
- whether a limitation or restriction is objectively justified will always be context specific. The nature of the relevant employment relationship will lead to different considerations.
Awaiting the Tribunal's Decision:
Whether the measures Farmor’s School took in response to Mrs Higgs’ Facebook posts amount to unlawful discrimination or harassment will now be considered again by the Employment Tribunal, and it will be interesting to see the result.
In the meantime, this case serves as a reminder to employees that what they post on their private social media account could have serious repercussions for their employment.
The case also reminds employers to think carefully before taking action against employees for behaviour which may be protected under the Equality Act 2010.
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