Hello old friend. Lovely to see you again. It’ll be a short personal update from me this week. Things are quiet in the Pearson-Batt household. It’s almost like we’re hibernating. Highlights include…
I went to a gig last week. Gigs are few and far between for me and, obviously, you’re more likely to find me at a musical than a music hall (they don’t even call gig venues that do they? It’s not the 1920’s Philip!) But off to Birmingham I ventured to see James Bay. You know? Hold Back The River and all that. He’s a singer songwriter and he is very good at both writing and singing songs. If he ever comes to a town near you, I’d highly recommend going to see him, if you’re into that sort of thing.
Next on the “gig” rota is Kylie Minogue at the end of May – if you can call that a gig? What’s the difference between a gig and a concert? Answers on a postcard please, you know the PO Box!
It was also Benji’s third “gotcha day” last week. “Gotcha days” are the anniversary of the day you bring your doggo home. I can still remember Paul carrying a tiny little puppy under his coat as we ran through the streets of Todmordon (Happy Valley land) in the pouring rain to get Benji to the car to bring him to his new home. Three years later he has changed, and grown, massively. I may not be completely impartial, but I do think he is the best boy. I mean, who doesn’t want to be woken up at 3am to him howling in his dreams (he was fine, just chasing birds in his sleep) to then go for a walk in the sleet and snow at 7am the next day? Just two of the joyful things we got up to this weekend.
The more I think about it, the more did actually happen last week. So, when I say things are quiet, I might not be telling the whole truth. In fact… another thing that happened last week was that the Court of Appeal handed down its judgment in the case of Higgs v Farmor’s School.
For those of us employment law and HR “nerds” (said with pride!) it was quite the anticipated judgment because it will have major implications for employers where they have employees who express controversial beliefs both inside and outside of work, on things like social media. You need to know about this one, so let me tell you…
What are the facts here?
The Claimant, Mrs Higgs, was employed by Farmor’s School, a secondary school in Gloucestershire, as a pastoral administrator and work experience manager. She was a Christian and was dismissed by the School for gross misconduct after she shared posts on her personal Facebook account relating to criticism of the way gender and relationships are taught in schools.
Let me give you an example of what she was sharing on her Facebook: “the LBGT [sic] crowd with the assistance of the progressive school systems are destroying the minds of normal children by promoting mental illness”.
A parent complained about these posts. They found the views expressed to be homophobic and prejudiced. The Respondent undertook an investigation and ultimately dismissed the Claimant.
What did the Employment Tribunal (ET) and Employment Appeal Tribunal (EAT) say?
The Claimant brought claims in the ET arguing that she had been dismissed because of her religious beliefs that gender is binary and that same-sex marriage cannot be equated with marriage between a man and a woman.
The Claimant was not successful at the ET. In fact, the ET dismissed the Claimant’s claims on the basis that they felt she hadn’t been dismissed because of her beliefs but because the Respondent was concerned about possible reputational damage due to her actions being seen as transphobic and homophobic.
The Claimant appealed and her appeal was successful because the EAT felt that the ET had not properly considered that her social media activity had been an expression of her protected beliefs. The EAT focussed on the need for a full consideration of proportionality in this case – i.e. was dismissal necessary for the protection of the rights and freedoms of others, under human rights law? The EAT said a new ET should hear the Claimant’s case but she appealed to the Court of Appeal, saying that she should be given judgement in her favour without the need for a further hearing.
What did the Court of Appeal say?
The Court of Appeal agreed and said that the EAT should have concluded that the decision to dismiss the Claimant constituted unlawful discrimination on the grounds of religion or belief. This meant the Claimant succeeded in her claims without the need for a further hearing.
Essentially, the Court of Appeal has confirmed that employers cannot dismiss or impose other sanctions on employees for expressing a protected belief simply because the employer finds that belief to be objectionable or they feel they need to take action to protect their reputation.
Instead, employers should only take appropriate action where this action is taken because of something objectionable in the way in which views are expressed. Even then, the action taken must be a proportionate response to the objectionable feature of the expression of the protected belief.
In this particular case, the Claimant’s dismissal was not a proportionate response to the Claimant’s expression of her views. The Court of Appeal noted that: the Claimant had not expressed these views in work; the posts had not been intended to incite hatred towards gay or trans people; the Claimant had indicated to the Respondent that she did not agree with the inflammatory language used in the posts; it was acknowledged the posts did not represent the Respondent’s views and there was no evidence that the Claimant had, or would, display discriminatory attitudes in her treatment of pupils at work. She’d worked for the Respondent for six years with no concerns being raised. Finally, it was noted that there was no evidence that the Respondent’s reputation had actually been harmed.
The Court of Appeal summed it up like this: whilst the posts were unwise, they didn’t justify the Claimant being dismissed.
What does this mean for you?
Crikey. There was a lot of “law” in that “legal” update wasn’t there? Let me explain in easy to understand terms what this means for you and what you should be doing to address this sort of situation:
- Don’t read this judgement as saying: if somebody expresses protected beliefs you cannot take action. That’s not what this judgement says! We just have to act in a reasonable and proportionate way.
- This means, what we should be doing if we discover somebody expressing views that might potentially offend others is to stop and think things through. Questions to ask ourselves include: were the views expressed at work or on a personal account in personal time? are the views open to the public? are the views being expressed in an appropriate way? does this potentially impact work, so, for example, does the expression of these views indicate that they are likely to treat certain individuals differently?
- We need to undertake a reasonable investigation. This is particularly important if you are going to take action on the basis that you want to protect your reputation. This case makes really clear that if you’re dismissing for reputational reasons, you’ve got to have clear evidence that your reputation has or could be damaged.
- We should also make sure our policies are up to date and comprehensive. When I talk about policies this includes codes of conduct and, importantly, social media policies. This means that they should make clear things like: employees should not post anything that may be offensive or which might constitute discrimination or harassment; employees should have a statement on their personal social media profiles along the lines of “views expressed are my own and do not reflect the views of my employer” and that employers will take appropriate action (which may include disciplinary action up to and including dismissal) if they think that employees have breached their policy.
- Once you’ve got your policy written down, share it with your people. Make sure they know precisely what it says and what you will or won’t tolerate. Give them examples of potentially discriminatory comments (you could do that through your anti-harassment or general equality, diversity and inclusion policies). As we say repeatedly: it’s all very well having a policy but if your people don’t know what it says, it’s not worth the piece of paper it is written on.
- If you do decide that it is reasonable to take action, think about what that action will be. Are there mitigating circumstances that warrant a lesser sanction? Is dismissal the only reasonable outcome to this case or is there something less drastic you can do to address this situation? So, for example, if you can work with the employee to find a resolution you should do that. In the Higgs case, the Court of Appeal said that the Respondent could have issued a statement with the support of the Claimant making clear that her views didn’t represent the Respondent and did not impact her work.
- Make sure you’ve got a clear paper trail of your thought process so you can show an employee, their lawyer or the ET that you’ve given proper consideration to matters and that you have acted reasonably and proportionately.
This is a minefield. I get it. I see it regularly – where do we draw the line here? How do we balance rights and beliefs? If you’re in doubt, you really need to be taking legal advice because the consequences of getting it wrong can be huge, both for the individuals involved and your organisation more generally.
Who you gonna call? Your friendly neighbourhood employment lawyers. Team Precept!
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