The case of Kirstie Higgs and her previous employer, Farmor's School, has finally been decided by the Court of Appeal. Her dismissal was direct discrimination and the case will not return to the employment tribunal as the EAT had ordered. A long journey for all concerned but thankfully we have some clear guidance from the Court of Appeal which we hope will assist employers going forward.  

Case summary

Ms Higgs was dismissed by the school for sharing and commenting on posts on her personal Facebook account. The posts concerned the way same-sex relationships and gender fluidity were being taught in schools. Following her dismissal, Ms Higgs brought various claims, but the one which is of interest in this blog is her claim that her dismissal was direct discrimination on the grounds of her belief(s). She argued that her Facebook activity was a manifestation of her various beliefs which included, a lack of belief in gender fluidity, a lack of belief in same-sex marriage and a belief in marriage as a life-long union between a man and a woman.  

Court of Appeal decision 

• The dismissal of an employee merely because they have expressed a religious or other protected belief to which the employer (or another third party) objects is unlawful direct discrimination.  
• But if the dismissal is motivated not by the belief itself but by something ‘objectionable’ in the way it was expressed or manifested (and that should be determined objectively) then that dismissal may be lawful but only if the employer can demonstrate it was a proportionate response to the ‘objectionable’ or inappropriate behaviour e.g. was the dismissal objectively justified?  

Take away points

Whilst the legalities and details of this case are beyond the word count and remit of this blog, we recognise that competing rights/social media activity/preserving a reputation are key issues for employers. 

With that in mind, here are some points to consider:

• Follow processes without panic 
  • Ms Higgs' case was triggered by a parent who thought that the blogs were offensive and had the potential to be harmful to the children in Ms Higgs' care as well as the school's reputation. 
  • The school responded with an investigation and disciplinary action. The judge noted this as an appropriate step to take in light of the parent's report. Offensive language had been used and there could be a risk to the school if the complaint was not investigated. 
  • At this point the school appeared to panic; a full disciplinary investigation was triggered, Ms Higgs was suspended and the case appeared to escalate - ending in summary dismissal for gross misconduct. The only basis for this decision was the potential risk to the school's reputation, despite only one complaint having been lodged and Ms Higgs' lack of insight into her actions. 
  • Faced with complaints, and ones dealing with contentious issues such as gender and sexuality, employers should respond and follow the due process under their policies and procedures without a sense of panic accelerating any process and so fast forwarding to an end decision.  
     
• Dialogue without stereotyping
  • The school in this case assumed, because of Ms Higgs' belief, that she was transphobic and homophobic and those views would affect her treatment of certain pupils. Even though there was no evidence that her beliefs had affected how she treated children and that she denied being either transphobic or homophobic. 
  • It's important when dealing with situations like Ms Higgs' that employers are willing to talk to employees about their faith and ask respectful questions rather than making assumptions. A response will then be based on a factual understanding, not an assumption.  
     
• Appropriate action without a knee-jerk reaction
  • This is the key to these cases and applies the Court of Appeal's decision that any 'interference' or limiting an employee's right to manifest their belief must be a proportionate response. Continuing with the theme of the first bullet point, appropriate action means action without panic, with dialogue and without hasty judgement. 
  • Whilst we know the school talked to Ms Higgs as part of the investigation, there seemed to be no discussion as to what could be done in future to avoid using offensive language and yet still acknowledge Ms Higgs' right to express her beliefs. No other sanctions appear to have been investigated or anything else to suggest this was a proportionate response. 
  • In these cases, appropriate and proportionate actions which are well documented and thought through are key to avoiding years of litigation that Farmor's School has endured.

For more information

If you would like specific advice on this issue or details of bespoke training products on how to run an effective investigation and disciplinary process please contact me.