Expression of beliefs on Facebook

The Employment Appeal Tribunal (EAT) has handed down an important decision relating to the dismissal of a school employee for expressing her opinions about sex education in schools on Facebook.

Higgs v Farmor’s School [2023] EAT 89

Facts of the case

The employee, Mrs Higgs (H), was employed as a pastoral administrator and work experience manager. She shared a petition on Facebook relating to a government consultation on relationships and sex education in schools. The post referred to the “brainwashing of children”, claiming it was “a vicious form of totalitarianism” aimed at “suppressing Christianity”. She also shared other posts on Facebook, expressing similar views.

Following a complaint by a parent, H was suspended while an investigation was carried out. She denied that she was homophobic or transphobic, and she did not express any regret for the posts. H was dismissed for gross misconduct for breaching the school’s conduct policy, which prohibited discrimination and the inappropriate use of social media.

H claimed that she had been directly discriminated against and harassed on the ground of her religious beliefs relating to sex, gender and marriage and her lack of belief in gender fluidity.  Her claim was dismissed by the employment tribunal. It held that her beliefs were protected under the Equality Act 2010, but she had not been directly discriminated against or harassed because of those beliefs. The school’s reason for dismissing H was not related to her actual beliefs, but because the posts that she had shared might be interpreted as evidence that she held homophobic or transphobic beliefs and were in breach of the school’s policy.

EAT decision

H’s appeal has been upheld by the EAT, which has remitted her case to be reheard by the employment tribunal.

The EAT noted that the tribunal was required to determine H’s claim in accordance with her rights under the European Convention on Human Rights, particularly the right to freedom of thought, conscience and religion (Article 9) and freedom of expression (Article 10). The tribunal had failed to consider whether the respondent’s actions were a proportionate interference with the claimant’s ECHR rights, and it had not conducted the necessary balancing exercise between the interference with those rights (the disciplinary action against H) and the respondent’s objectives in taking action (upholding the school’s conduct policy).  

The tribunal had followed the wrong approach in this case, by failing to consider whether the school’s actions were due to a manifestation of H’s beliefs. It needed to consider whether there was a sufficiently close or direct nexus between H’s protected beliefs and her Facebook posts, rather than considering it through the “prism” of the school’s view of the posts. It was not enough for the tribunal to find that the respondent was motivated by a concern that the claimant could be perceived to hold “wholly unacceptable views”. It should have considered whether the Facebook posts were an expression of H’s beliefs, and then conducted the necessary balancing exercise to consider whether the school’s response was justified.

The EAT set out some basic principles for tribunals when assessing the proportionality of any interference with Article 9 and Article 10 rights. The freedom to manifest belief and express views relating to that belief are essential rights in any democracy, whether or not the belief is popular or mainstream and even if its expression may offend. These rights are qualified, meaning that the law permits the limitation or restriction of such manifestation or expression to the extent necessary for the protection of the rights and freedoms of others. Whether such limitation or restriction is objectively justified is always context-specific and will depend on the nature of the employment.

The Birketts view

This is a complicated and technical decision, which highlights the difficulties for employers in seeking to balance competing rights and beliefs within the workplace. What the EAT is essentially saying is that the tribunal should have considered whether the respondent’s actions (the decision to dismiss) related to the claimant’s manifestations of her beliefs (the Facebook posts). Only once this has been established, can it be decided whether the action taken by the employer could be justified in all the circumstances, having carried out the necessary balancing exercise between the claimant’s ECHR rights, and the employer’s reasons for taking the decision to dismiss.

One of the factors highlighted by the EAT when considering the question of whether an interference with an individual’s ECHR’s rights is justified, is whether a less intrusive limitation might be imposed without undermining the achievement of the objective in question. Applying this to the facts of the case, could the school’s objective have been achieved by imposing a lesser sanction than dismissal?

Employers need to be cautious when approaching issues relating to a conflict of beliefs held by their staff, recognising that most genuinely held beliefs will attract the protection of the Equality Act 2010. Concerns over the expression of such beliefs need to be handled sensitively and policies should not be applied in an overly restrictive way, particularly when such expressions are made outside the working environment.