Discrimination vs Discrimination: Offensive Facebook Posts Amounting to Gross Misconduct or Oppression of Free Expression?

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Discrimination vs Discrimination: Offensive Facebook Posts Amounting to Gross Misconduct or Oppression of Free Expression?

Key Contact: Claire Knowles

Author: Adam McGlynn

Drawing the line between freedom of speech and social media posts that cause offence, the claim of Higgs v Farmor’s School may become a culture-defining decision. In 2018, posts that Mrs Higgs, a secondary school pastoral administrator, had re-posted on Facebook were brought to the school’s attention by a concerned member of the public. The focus of these posts was to encourage parents to challenge the sex, gender identity, and relationships curricula in schools. While claiming to simultaneously respect the rights of homosexual and transgender people, Mrs Higgs’ motivation to repost the material was based on her religious and philosophical beliefs, in particular:

  1. that biological sex is binary and immutable,
  2. that marriage is a religious union between one man and one woman,
  3. that sex and/or relationship education should not be taught to primary school children; and
  4. that she should share the literal truth of the bible in response to publicised unbiblical ideologies.

Among the reposts were particular phases and words that Mrs Higgs later expressed remorse for, including “brainwashing”, “delusional thinking”, and “psychotic thinking”.

Progressing to a disciplinary hearing, the school dismissed Mrs Higgs for Gross misconduct. The school acknowledged that there were no concerns about Mrs Higgs’ conduct within the school, but that, as a result of the Facebook posts (the language of which was “inflammatory and quite extreme”), the complainant had taken offence. The school found that this was “clear evidence of discrimination… in the form of harassment”, and that there was a potential risk of harm to the school’s reputation. Mrs Higgs’ appeal was similarly dismissed.

Mrs Higgs brought a claim for direct discrimination and harassment, claiming that her treatment, most notably her dismissal, discriminated against her for an acceptable manifestation of her protected beliefs.

Employment Tribunal

The ET accepted that Mrs Higg’s beliefs fell within the protection of the Equality Act 2010 but found that the dismissal was not because of, or related to, Mrs Higgs’ “actual beliefs”. Instead, the dismissal was motivated by the concern that her posts might be seen as evidence that she held other beliefs, which might be described as “homophobic” or “transphobic”, and was, therefore, lawful. Mrs Higgs appealed to the Employment Appeal Tribunal, whose judgement was released in June 2023.

Employment Appeal Tribunal

The EAT reviewed the ET’s decision alongside intervening submissions from the Archbishops’ Council of the Church of England, a registered charity established to co-ordinate, promote, aid, and further the work and mission of the Church of England. The intervenor’s submissions boiled down to two essential points: (1) rights to freedom of religion/ belief and freedom of speech are based on the core values of pluralism, tolerance, and dialogue; and (2) any limitation of those rights must be strictly proportionate to the aim pursued, both of which the EAT agreed with.

The EAT found several failings in the ET’s judgement, as it had bypassed several elements of the legal test, impermissibly narrowing its considerations. The ET had failed to question whether Mrs Higgs’ treatment was because of, or related to, the manifestation of her beliefs. It had, further, not conducted an appropriate balancing act between Mrs Higgs’ right to manifest her beliefs and to what extent, if any, the right to manifest her beliefs could be limited in the context. In particular, it failed to carry out any assessment of the proportionality of the school’s actions, a failing which is particularly problematic as the ET had also, in its reflections, found that it “might be contended that there was a different course of action [the school] could have taken”.

The EAT has now remitted the case back to the ET for proper exploration together with guidance on how such cases should be properly assessed including the following key reminders:

  1. The freedom to manifest belief (religious or otherwise) and to express views relating to that belief are essential rights in any democracy, whether or not the belief in question is popular or mainstream and even if its expression may offend.
  2. Free expression of belief will be protected except to the extent the law permits a limitation which is necessary and proportionate to protect the rights of others in relation to the objectionable manner in which beliefs might be expressed.

For advice on any of the topics discussed, contact the Employment team at Acuity Law.

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