Managing Manifestations: protected beliefs in the workplace and the Court of Appeal judgment in Higgs v Farmor’s School

The Court of Appeal has today handed down judgment in the case of Higgs v Farmor’s School on the issue of whether the School’s dismissal of Ms Higgs for making several Facebook posts was lawful.

The upshot of the judgment is that such a dismissal was not lawful, despite the fact that the posts were offensive. The Court of Appeal’s judgment is a particularly clear statement of the legal analytical framework through which tribunals must decide such challenging cases and, by extension, how employers should approach investigate and handle such issues. While such assessments are particularly fact sensitive, there are many helpful comments in the judgment which will aid tribunals and employers alike in that difficult undertaking.

The facts

These are well known and the key points can be succinctly summarised. Ms Higgs, on her private Facebook page which made no reference to her employer and didn’t even use her working surname, made a series of posts / reposts about gender, sex education and same-sex marriage. The court recognised that these were, variously, “offensive”, “derogatory sneers”, “stupidly rhetorical exaggeration”, “florid” and “provocative”. Her employer, taking into account a third party complaint that her posts were “homophobic”, summarily dismissed her for gross misconduct.

Ms Higgs claimed discrimination on the basis that her posts were manifestations of a set of protected philosophical beliefs (broadly analogous with gender critical beliefs).

The decision

At the heart of the Court of Appeal decision was the ground of appeal that said the Employment Appeal Tribunal should not have remitted the case back to the tribunal because it was clear that the school had acted unlawfully. The Court of Appeal agreed and allowed her appeal; her dismissal was unlawful.

The basis for this decision was an earlier Court of Appeal judgment in Page v NHS Trust Development. This held that:

“adverse treatment in response to 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 in which the belief was manifested”.

If there was a feature of the employee’s conduct to which the employer could legitimately object, then the court will assess whether the employer’s response (here, the dismissal of Ms Higgs) to that feature was “proportionate”. It is for the employer to show that the response was “proportionate”, based on an objective reading of what was said (i.e. not based on subjective stereotyping by the employer or others).

The question of what is “proportionate” must be determined with reference to the European Court of Human Rights case law around Article 9 (freedom of belief) and Article 10 (freedom of expression). As the Court of Appeal recognised, the Convention provides significant levels of protection for expression, even for speech which offends, shocks or disturbs: “freedom only to speak inoffensively is not worth having”.

Yes, this introduces a requirement of objective justification into the causation element in section 13 (1) Equality Act 2010, but that is nonetheless the correct legal analytical framework.

In applying this to Ms Higgs’ dismissal, the Court concluded that it was not even arguable that this was proportionate, despite how it characterised her speech (see above). It noted several factors:

1. Her posts were not grossly or gratuitously offensive. They were not as serious as, for example, the conduct in the case of Lilliendahl v Iceland where the individual described homosexual activity in crude and highly offensive language and referred to it as disgusting.
2. The posts were largely reposts and not Ms Higgs’ own words.
3. There was no evidence that the reputation of the School had been damaged. The posts were made on a personal account, in her maiden name and contained no reference to her employer.
4. There was no evidence that her work at the School would be affected by the views expressed in the posts, and she had an otherwise exemplary work record and she did not exhibit discriminatory attitudes towards pupils.
5. It did not matter that she had not shown any insight into the offensiveness of her posts when questioned along those lines during the disciplinary process.

There is no clear guidance as to whether one or any of these factors was determinative or would have changed the decision if absent. Indeed, the point is that one cannot generally establish any definitive rules or set of factors to be assessed when undertaking a proportionality assessment: it will be a case of fact and degree and every case will turn on its merits.

Close followers of the case law in this area will recall the nine point list of Eady P in the EAT case: this was broadly validated by the Court of Appeal with a health warning that they are not a checklist and not necessarily all relevant – they are subsumed under the primary test above and each case must be considered on its facts.

It should be noted that the above approach only applies in a true manifestation case. As the right to hold a belief is absolute under the Convention, if an employer is motivated by the fact that the employee holds the belief then that will be unlawful. An employer must show that they are only motivated by the conduct which constitutes the manifestation of the belief.

Takeaways

So, if the employer is motivated simply by the expression of the belief to which it (or a third party with which it wants to protect its reputation) objects, then this will be unlawful without the need to apply the proportionality test.

This will be particularly risky in cases where the protected belief relied upon has hitherto not been recognised under the Equality Act 2010 – employers faced with that situation are at high risk because by definition they don’t know they are impugning the holding or mere fact of manifesting a protected belief.

In terms of helpful points of guidance on proportionality assessments, the Court of Appeal also made further useful comments, albeit mostly obiter.

Where an employer relies upon its reputation, it may be relevant: whether the matters commented upon had anything to do with the employer’s business; whether the comments were expressed in egregiously offensive or insulting language, the threshold for which is high; and/or whether the comments were expressed to be personal or may be imputed to the employer.

Where an employer relies upon unlawful stereotyping of the beliefs (e.g. that gender critical views are transphobic or views on same-sex marriage are homophobic) either on its own part or on reliance of such views by third parties, then there is a real risk that this will be straightforwardly discriminatory without the need for a separate proportionality assessment.

This casts doubt on another decision of Eady P in Omooba v Michael Garrett Associates where it was held that there was no discrimination because the reason for the impugned treatment was neither the belief nor the objectionable manifestation, but a truly separable feature (i.e. potential business harm arising from a social media storm). This approach was adopted from whistleblowing cases concerning the offensive or abusive manner in which the protected disclosure was made.

However, the Court of Appeal clarified that Page imports a test of objective justification into protected belief and manifestation cases while not doing so for other cases, such as whistleblowing. This would imply that Omooba was wrongly decided and that employers cannot seek to rely upon a truly separate feature; at best you will have to undertake a proportionality analysis.

Conclusion

An employer’s scope for responding to and managing manifestation cases has therefore been limited in two key ways. Not only is the Omooba approach seemingly off the cards, but the Court of Appeal has given robust guidance on proportionality and how difficult it is to justify impugning a manifestation of a protected belief. This approach will have importance for protected belief (Article 9) cases going forward, but also Article 10 (free expression) cases more generally, including unfair dismissal cases.