A long awaited EAT Judgment in Higgs V Farmor’s School has failed to offer guidance to employers in competing protected characteristics cases.
Facts
Mrs Higgs, a Christian, was employed as a pastoral administrator and work experience manager at Farmor’s School. She shared a number of posts via her Facebook account which openly criticised teaching about LGBTQ+ relationships. She also encouraged other Facebook users to sign a petition against plans to introduce relationship education as a compulsory subject for young children. Following receipt of a complaint about her social media activities, an investigation was undertaken and following a disciplinary, Mrs Higgs was dismissed for gross misconduct for breaching the School’s Conduct Policy. She issued a claim at the Employment Tribunal (ET) for discrimination and harassment on the grounds of her religion or belief. Specifically, her beliefs included but were not limited to her lack of belief in gender fluidity and lack of belief that someone could change their biological sex/gender.
The ET ruled that her lack of belief in gender fluidity and lack of belief that someone could change their biological sex or gender, were worthy of respect in a democratic society and otherwise satisfied the other elements required for them to be afforded protection under the Equality Act 2010. That said, the ET did not uphold her claims. It found that the rationale behind Mrs Higgs’ dismissal was unrelated to her beliefs. She had been disciplined and dismissed because of the inflammatory language used in her Facebook posts which it found went much further than her beliefs and could have led a reader to believe that she was homophobic and transphobic.
She appealed this Judgment on the basis that it was not transphobic to have doubts about gender re-assignment for children.
Employment Appeal Tribunal Judgment
The Employment Appeal Tribunal (EAT) finally handed down its long-awaited Judgment in this case on 16 June 2023, allowing Mrs Higgs’ appeal. It held that although the ET was entitled to find that there was one concern underlying each of the School’s actions (i.e. suspension, disciplinary and refusal of appeal), it had failed to consider the “reason why” those actions were taken by the School. Had it done so, the EAT considered that the ET would have concluded that there was a close or direct link between the action complained of (i.e. Facebook posts) and her protected beliefs. The ET had failed to consider whether the School’s actions were proportionate as an interference with Mrs Higgs’ right to freedom of religion and expression. This assessment was necessary in determining whether the School’s actions were because of her protected beliefs (which is protected) or because of the inappropriate manifestation of her belief which the School was entitled to object to. The matter was therefore referred back to the ET for a re-hearing on the issue of the “reason why”. Interestingly, the EAT has refused to lay down general guidance to deal with manifestation of belief cases and emphasised the danger in doing this as these cases will all be highly fact-sensitive and ultimately there is no one size that fits all.
Comment
Whilst it is disappointing that the EAT has not issued further guidance to assist employers in managing situations where there is potential for beliefs/ protected characteristics to be at odds with one another, this reinforces the difficulty employers are faced with in having to manage such conflicts and ensure harmony in the workplace. The EAT’s reluctance also emphasises the danger in employers seeking to adopt a blanket approach when dealing with such issues and the need for employers to consider each case on its own facts.
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