Expression of beliefs in the workplace – unlawful dismissal for social media posts

Dismissal of an employee for posts made on her personal Facebook page relating to her beliefs was held to be discriminatory in Higgs v Farmor’s School.

Background

The Claimant made a number of posts on her Facebook page criticising sex education in schools and opposing the view that same-sex marriage is equivalent to marriage between a man and a woman. One parent complained to the Head Teacher.

The Respondent dismissed the Claimant for gross misconduct as it believed that someone reading the posts might think that the Claimant felt that gender fluidity should not be taught in schools and that she was hostile towards the LGBT community, particularly trans people.

The Claimant brought claims of direct discrimination and harassment, claiming that the dismissal was discriminatory on the grounds of her religious belief.

Employment Tribunal (ET)

The ET dismissed the Claimant’s claims, finding that the Claimant was dismissed because of the Respondent’s concern over the perception that the Claimant held homophobic and transphobic views and therefore may damage their reputation, not because of her beliefs.

Employment Appeal Tribunal (EAT)

The EAT found that the ET’s decision was flawed because it did not properly look at whether there was a close or direct nexus between the Claimant’s conduct and her beliefs, and did not consider whether the actions of the Respondent were justified considering the Claimant’s Human Rights.

Court of Appeal (COA)

The COA held that even if the school was entitled to object to the language in the posts, the Claimant’s dismissal was disproportionate because:

• The post did not intend to incite hatred or disgust for gay or trans people;
• The language was within messages that the Claimant had re-posted;
• The Claimant made clear to the Respondent that she did not agree to the use of that language;
• There was no evidence of reputational damage to the Respondent;
• The Respondent accepted that those reading the posts would not believe they were representative of their views; and
• There was nothing to suggest that the Claimant had expressed the views at work or that they would treat gay or trans pupils differently.

The COA also said that although the posts were unwise, it did not warrant dismissal. This was particularly so given that the Claimant was a long-serving employee and there were no complaints about her work. As a result, the COA decided that the Claimant’s dismissal was unjustified and constituted unlawful discrimination.

Comment

This case acts as a good reminder to employers to consider their actions towards conduct that may be connected to a protected characteristic, such as controversial religious beliefs.

It would also be advisable to enforce a social medial policy which sets clear expectations for employees. For further advice, or for assistance putting together such policy, please contact our Employment Team.