Kristie Higgs was a pastoral administrator and work experience manager at Farmor’s School in England when she shared Facebook posts about relationships and sex education in UK schools. Higgs largely reshared others’ material, which expressed concerns that “children are being primed for a gender fluid society” and “recruit[ed] for the transgender roster” and said, “Lying to children and convincing them that they can be anything they want to be when in reality they can’t is a form of child abuse, especially when it entails the changing of one’s genitalia or ingesting hormones.” She added a brief comment of her own to the effect that the proposed education amounted to “brainwashing” of children.
Although Higgs posted under her maiden name and her Facebook profile did not reference her connection to the school, a parent of a child enrolled there identified her and complained to her employer that Higgs had expressed “homophobic and prejudiced views”. Higgs was suspended, investigated, and summarily dismissed for gross misconduct.
Higgs challenged her dismissal in the Employment Tribunal and, after losing there, in the Employment Appeal Tribunal (“EAT”). The EAT granted her appeal and ordered the Tribunal to reconsider her case but Higgs appealed that decision to the Court of Appeal, arguing that the EAT should have decided the case itself on the basis that the only possible conclusion was that she had suffered unjustifiable discrimination.
There were three key issues for the Court of Appeal:
- Whether the relevant law protected the external manifestation of religious and other beliefs (and not merely the ability to hold those beliefs internally);
- Whether Higgs had been dismissed “because of” her manifestation of her beliefs;
- Whether the school’s concern that it would suffer reputational damage justified limits on Higgs’ ability to manifest her beliefs and therefore justified her dismissal.
1. Did the law protect the manifestation of beliefs?
Higgs’ claim arose under the Equality Act 2010 (UK) (“Act”), which prohibited discrimination in employment on the basis of various “protected characteristics” including “religion or belief”, where “[b]elief means any religious or philosophical belief.”
The Court of Appeal noted that Higgs’ beliefs—“that gender is binary and not ‘fluid’” and “that same-sex marriage cannot be equated with traditional marriage between a man and a woman”—were qualifying “religious or philosophical” beliefs. However, while the Act obviously prohibited discrimination against someone because they held such a belief, it was silent on whether it prohibited discrimination “on the grounds of the manifestation of [that] belief”.
Drawing on cases about Article 9 of the European Convention on Human Rights (“ECHR”), the Court of Appeal held that the Act protected the manifestation of beliefs, that is, someone’s public expression or demonstration of a belief by their conduct, whether “in their actions or their clothing or appearance or otherwise”. The Article 9 cases established that manifestation “does not extend to every act which is ‘in someway inspired, motivated or influenced by’ [a] belief”, but only to an act which is “intimately linked to the religion or belief” or where there is “a sufficiently close and direct nexus between the act and the underlying belief”.
The Court of Appeal went on to say:
In a manifestation case proper the employer genuinely has no objection to the employee holding the belief and is motivated only by the conduct which constitutes the manifestation. Most claims of discrimination on the ground of religion or belief are likely to be genuine manifestation cases of this kind.
However, the protection for manifestation of belief is “qualified”. Again drawing on the Article 9 jurisprudence, the Court of Appeal noted that the right to hold a belief is absolute or unqualified, because it is purely internal. By contrast, the right to manifest a belief can be limited or qualified because “manifestation constitutes conduct which is outward-facing and for that reason ... ‘may have an impact on others’ and accordingly may require to be limited so as to take account of other interests.”
The nature of this justified limitation was the subject of the next question the Court of Appeal considered.
2. What constitutes dismissal “because of” manifested beliefs?
The Act prohibited discrimination “because of” a protected characteristic, like manifested beliefs. But in some cases, an employee may be dismissed or disciplined not because of the beliefs they manifested but because of “some properly separable feature” of their conduct. In other words, a court should ask what was “the real reason” for their treatment by the employer?
Indeed, employers are not expected “to tolerate any conduct at all by an employee which constituted a manifestation of belief, whatever form it took and whatever the circumstances”. Therefore, “an employee’s manifestation of their belief was not to be treated as having occurred ‘because of’ that manifestation if it constituted an objectively justifiable response to something ‘objectionable’ in the way the belief was manifested”.
Thus the Court of Appeal held that the phrase “because of” was the appropriate point to assess justified limits in manifestation cases like this one. That is, where an employer’s response to an employee’s manifestation of their beliefs is objectively justified, the employer has not acted “because of” that manifestation.
As to what counts as an “objectively justifiable” response to “objectionable” or “inappropriate” conduct, the Court of Appeal said this should be assessed using the kind of proportionality test prescribed for Article 9(2) of the ECHR. Was the employer’s action pursuing a “sufficiently important” objective and “rationally connected” to that objective, could a “less intrusive” action have achieved the same objective, and does the importance of the objective justify the impact on the employee’s rights?
The school argued that there was a real risk it would suffer reputational damage because of Higgs’ posts, and that this justified her dismissal (and limits on her ability to manifest her beliefs). This was the third key issue the Court of Appeal needed to consider.
3. When does the risk of reputational damage justify limiting an employee’s ability to manifest their beliefs?
The Court of Appeal stated that:
An employer does not have carte blanche to interfere with an employee’s right to express their beliefs simply because third parties find those beliefs offensive and think the worst of it for employing them. Nor, however, does the employee have carte blanche about what they can say in public or how, or in what circumstances they say it.
The school was entitled to be concerned about the risk of reputational damage, but even so “the interference in question must be proportionate.” In assessing the proportionality of the school’s response, the Court listed three considerations which were relevant to assessing its “legitimate interest in protecting its reputation”. First was “the subject-matter of the expression of opinion or belief.” Comments which are unrelated to an employer’s business are less likely to affect its reputation than comments about matters which are “central” to that business. Second was “the way in which the employee expresses their beliefs”—was it “egregiously offensive”? Did it involve the use of “insulting language”? The Court stressed that “the threshold of offensiveness should be high: protection should not be lost merely because the employee has expressed themselves intemperately.” Third was “whether it is clear that the views expressed are personal to the employee.”
The Court of Appeal also stressed that an employee’s comments should be judged by what they objectively said, “rather than by what some readers might choose illegitimately to read into them. That is particularly important in the current social media climate”.
The Court of Appeal’s conclusion
The Court considered that the material (re)posted by Higgs contained “derogatory sneers” and “stupidly rhetorical exaggeration” but was “not likely to be taken literally”. The posts were “not grossly offensive” and were not in fact Higgs’ own language (with the exception of the term “brainwashing”).
The school had not suffered any actual damage to its reputation and there was “no possibility” that anyone reading Higgs’ posts would think they represented the school’s position. There was also no real risk that her posts would be circulated more widely. Indeed, “[b]y the time of the hearing, several weeks after the posts were made, only one person was known to have recognised who she was.”
There was no evidence that Higgs had allowed her beliefs to influence her work and in fact there had been “no complaints about any aspect of her work for over six years.” The Court of Appeal accepted her argument that “her concern was specifically about the content of sex education in primary schools.”
Lastly, the school argued that Higgs had shown no insight into her actions or their effects as she stood by her posts and refused to take them down. However, the Court of Appeal considered that this may be relevant in some cases but not all: “There are understandable reasons why in some cases an employee may not be willing to admit that the conduct in question was wrong, or seriously wrong, particularly if it was the manifestation of a deeply-held belief.” It was also significant that this was not a case where “the employer needs to be confident that the employee understands what they have done wrong in order to prevent a more serious or damaging occurrence of the same conduct in the future”.
The Court therefore found that Higgs’ dismissal was not “even arguably a proportionate sanction” and that any rehearing in the Tribunal “would be bound to find that [her] dismissal was not objectively justified and accordingly that it constituted unlawful discrimination.”
Higgs’ appeal was therefore allowed, and she succeeded in her claim.
Comment
The decision is interesting and potentially relevant to cases brought under New Zealand’s Human Rights Act 1993 (“HRA”). For example, section 22 of the HRA prohibits discrimination in employment “by reason of” any of the “prohibited grounds of discrimination”.
The “prohibited grounds” include “religious belief” and “political opinion”. Higgs indicates these terms should be interpreted to include the manifestation of these beliefs, if the acts in question have “a sufficiently close and direct nexus” with those beliefs.
There may also be questions about whether an employer has acted “by reason of” (equivalent to “because of” in the Equalities Act 2010 (UK)) the employee’s beliefs as manifested, or because of some separable feature of the employee’s conduct such as the way the employee expressed themselves. Higgs suggests that this separation is only possible if there is something genuinely “objectionable” or “inappropriate” in the way the employee expressed themselves, and that any response by the employer must be proportionate.
