In the case of Higgs v Farmor’s School, a practicing Christian (H) worked as a school counsellor. Her contract of employment was terminated on the grounds of gross misconduct after she posted comments on Facebook criticising relationship education in schools. Her primary comments centred around transgender issues. After her dismissal, she claimed that her dismissal was discriminatory on the grounds of her religious beliefs, namely that she believed someone could not change their biological sex and that marriage was an institution between a man and woman. The case was referred to The Court of Appeal (CA).
The CA found in favour of the claimant. They ruled that a dismissal of an employee merely because she expressed a religious or other protected view, which the employer (or indeed a third party) found unacceptable or objectionable, will amount to unlawful direct discrimination under the Equality Act 2010. But, if the dismissal was due to another reason, such as the way in which the comments were expressed or there was a substantial risk of reputational damage, the dismissal could be fair. This was established in Page v NHS Trust Development Authority. However, the CA emphasised that the employer must prove that there was an objectionable element and that a dismissal was a reasonable and proportionate response to it. In short, it must be objectively justified.
In this case, the claimant had posted messages mostly citing other sources, objecting to the government policy on sex education in primary schools and the promotion of free gender issues. The school argued that these postings (which included insulting references towards the gender promotors and the ‘LGBT crowd’) were worded in an aggressive and uncontrolled manner, demonstrating anger and extreme emotion, which were liable to damage their reputation. In support, they cited the one parental complaint they received and that other parents could read them and follow suit. However, neither the language of the comments nor the risk of reputational damage could justify the dismissal in these circumstances where she had not said anything of the kind at the school or displayed any discriminatory behaviour/attitudes in her relations with the pupils. On this basis, the dismissal was discriminatory.
The case clearly highlights the dangers of dismissing employees who hold and express certain religious views. Rather than the views themselves, employers need to consider the way in which such comments have been made, the language used, the tone and whether the employee has demonstrated such views in the workplace. Whether a dismissal can be justified objectively in these circumstances is difficult to assess. It is therefore important that employers seek professional advice before making decisions which could have serious financial implications.
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