Higgs v Farmor’s School – key points for the FE sector following judgment in landmark case

The Court of Appeal has handed down its much-anticipated judgment in the case of Higgs v Farmor’s School. Although the case is about an employee’s social media posts, made in her own name and in her own time, the court has laid down principles that employers, including those working in the further education sector, need to consider when they are dealing with conflicts of belief in the workplace. 

Case Facts

Mrs Higgs worked in a secondary school as a pastoral administrator and work experience manager, positions which put her in direct contact with children. She re-posted someone else’s post on her Facebook page which objected to the government’s consultation on relationships & sex education in primary schools. The post said that it normalised single-sex relationships, presented gender as a matter of choice, suppressed Christianity and “brainwashed” children. It also referred to the “LGBT crowd”.

One parent complained and Mrs Higgs was dismissed for gross misconduct. The school said that she had breached its written code of conduct which prohibited “illegal discrimination” and because her social media posts could bring the school into disrepute. 

She issued a claim against the school arguing that her dismissal (and the events leading up to it) amounted to direct discrimination and/or harassment. The tribunal rejected her claim. It said that she had been dismissed:

• for the way in which she had expressed her protected beliefs – not because she held those beliefs; and 
• a reasonable reading of her posts was that she was homophobic and transphobic. 

Mrs Higgs appealed. The EAT found that the tribunal had not properly considered whether the school’s actions were justified by reference to Mrs Higgs rights under the European Convention on Human Rights and remitted the case back to the tribunal to determine this.

Before that happened, Mrs Higgs appealed to the Court of Appeal. She argued that the EAT should have decided that the way the school had treated her for manifesting her lawful beliefs amounted to direct discrimination. 

Court of Appeal

The court spent some time considering the human rights angle, specifically Article 9 – the right to freedom of thought, conscience and religion, and Article 10 – freedom of expression. Both are qualified rights which can be limited by employers, via policies and contracts. Employers that wish to restrict what their staff can say, however, must be able to show that they have a legitimate reason for doing this and the steps they take to achieve this are proportionate.

Individuals have the right to express opinions that may shock, offend or disturb others. And their right to do this is particularly important where they are discussing issues of public interest. There are exceptions to this, but they are narrowly interpreted.

The school said that with rights come responsibilities. It argued that Mrs Higgs comments were “gratuitously offensive” and “grossly insulting” to the LGBT community and didn’t contribute to any form of public debate, and therefore went beyond the boundaries of acceptable free speech. It also said that her posts may lead people to believe that she used the same offensive language about LGBT people at work – including to children under her care. 

The school said that it had the right to protect itself from reputational harm (the “legitimate aim”) and dismissing Mrs Higgs was a rational (“proportionate”) way of achieving that aim.

Dismissal … not even arguably proportionate

The court was prepared to accept that the school could object to Mrs Higg’s posts. But, it said that dismissing her was unquestionably disproportionate for the following reasons:

• The posts contained derogatory slurs “far-left zealots” and rhetorical exaggeration “child abuse” which were offensive but were unlikely to be taken literally. Her language wasn’t grossly offensive and referring to the “LGBT crowd” wasn’t intended to incite hatred or disgust of gay or trans people. 
• Mrs Higgs hadn’t used most of these terms; she had reposted other peoples’ messages and had made it clear that she didn’t agree with the language used.
• There was no evidence that the school had suffered reputational damage: it had only received one complaint and the concerns it had about Mrs Higg’s views spreading to a bigger group of parents was speculative.
• The school didn’t believe that Mrs Higg’s personal views would impact her ability to do her job fairly. She’d worked there for six years and no-one had complained about her work.
• The school’s decision to dismiss Mrs Higgs had been influenced by its belief that she hadn’t shown any “insight” into what she had done and believed she may post other messages on Facebook. However, there was no universal rule that lack of insight justified dismissing an employee rather than imposing a lesser sanction. And, the court made it clear that in some cases there are understandable reasons why an employee wasn’t willing to admit that what they had done was wrong “particularly, if it was the manifestation of a deeply held belief”. 

The school had directly discriminated against Mrs Higgs and the EAT had been wrong to remit this aspect of the case back to the tribunal to determine.

The school was entitled to investigate …

But the question of whether the other aspects of the disciplinary process amounted to direct discrimination would need to go back to the tribunal to decide as the court didn’t have enough information to decide this. The court said that the school was entitled to investigate Mrs Higgs after it received a complaint but it said it was “debatable whether [it] needed to be disciplinary in character, or if it did, whether [the investigator] was justified in finding a case to answer at the end of it”. And, it was “still more debatable” whether it was necessary to suspend Mrs Higgs.

Relevant principles to apply to manifestation cases

The Court of Appeal approved the set of principles set out by the EAT in its earlier decision on Higgs. You can read these here. But it cautioned against tribunals adopting a one size fits all approach to these. It said that in some cases it will not be necessary or even useful to refer to each of these. All are potentially relevant, but often the tribunal will need to focus on some of them and exclude others. So, employers don’t need to treat these as a check list they have to tick off.

Learning points for the Further Education Sector

This judgment makes it clear that robust speech is protected as a manifestation of a religious or philosophical belief. As a College Principal or an apprenticeship training provider, you will only be able to take action for something an employee has said if it is objectionably inappropriate. That is a high threshold. 

Over the past few years we’ve seen employers take an overly zealous approach to dismissing staff who express completely lawful, and in many cases ordinary beliefs, because they have been stereotyped as being bigoted or hateful. The court made it clear that an employer doesn’t have carte blanche to interfere with an employee’s right to express their beliefs simply because third parties (for example) find those beliefs offensive and think the worse of them for employing them. 

But, of course, that cuts both ways and employees don’t have carte blanche to say what they want about other people either. If their behaviour harasses another member of staff, you will still be able to take action against them.

Balancing an employee’s freedoms alongside those of others is challenging. Drawing on the decision of the court in this case, we recommend that you:

1. Avoid knee-jerk reactions

Employees are entitled to hold and to express views that other people may find offensive. Don’t assume that an employee who, for example, expresses gender critical views must be homophobic or transphobic, or an employee who expresses concerns about the Gaza conflict is antisemitic. If you make a decision based on stereotypes about the perceived attributes of a particular group, that will amount to direct discrimination.

You should not, therefore, immediately suspend employees or discipline them.  

2. Objectively consider what they have said

And the context in which they said it. Are their views grossly offensive? Do they express hatred or disgust at a group of people? Is there any evidence that the employee has or is likely to treat that group differently at work? 

You need to be objective. Consider the words they use rather than what some readers might wrongly read into or infer from it. The court made the point that in the social media age, people who object to what others have said may be partisan, ill-intended or (more likely) “succumb to the common human tendency to find in the communication what they expect to find rather than what is actually there”.

3. Focus on where/how they have expressed their views?

There’s a huge difference between an employee who shares their views on social media and one who expresses them, in the same terms, at work. You can, generally, insist that your staff don’t use the workplace to showcase their views on political or controversial issues – provided you take an even-handed approach. We’ve seen many examples of employers who have allowed employees to speak about issues they support and shut down discussion they don’t, who have found themselves on the losing side of an employment tribunal claim. 

It’s unlikely to be proportionate to shut down all discussion between colleagues about controversial issues. A better approach is to encourage staff tolerate differences in opinion and, if they need to, agree to disagree rather than immediately taking offense.

In terms of social media, it’s sensible to put a policy in place so that your staff know that their profile should say that the views they express are their own, don’t reference you as their employer or include any other information about your organisation. You may want to include additional restrictions for senior members of staff whose personal views could severely damage your reputation particularly if your organisation sees neutrality as important.

4. Don’t over-egg reputational risks

Has what the employee said caused reputational harm? Is it likely that what they have said will cause harm? Will a reasonable person assume that they are speaking on behalf of you as their employer? Even if you receive complaints, could you 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 and weren’t shared by it.

5. 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. But it’s important not to focus too much on a lack of remorse. 

By Joanne Moseley, Senior practice development lawyer – employment, Irwin Mitchell