In a significant ruling pertaining to the dismissal of a school employee for expressing her opinions on sex education in schools via Facebook, the Employment Appeal Tribunal (EAT) has handed down a crucial decision.

The case, known as Higgs v Farmor’s School [2023] EAT 89, involved Mrs. Higgs (H), who held the position of pastoral administrator and work experience manager at the school. On her Facebook page, she shared a petition linked to a government consultation on relationships and sex education in schools. Her post referred to the “brainwashing of children,” labelling it a “vicious form of totalitarianism” aimed at “suppressing Christianity.” Additionally, she shared other posts expressing similar viewpoints.

Following a complaint from a parent, H was suspended while an investigation took place. During the investigation, she maintained that she was not homophobic or transphobic and did not express any remorse for her posts. However, H was ultimately dismissed for gross misconduct as her actions violated the school’s conduct policy, which prohibited discrimination and the inappropriate use of social media.

H claimed that her dismissal amounted to direct discrimination and harassment based on her religious beliefs concerning sex, gender, marriage, and her disbelief in gender fluidity. Nonetheless, her claim was dismissed by the employment tribunal. The tribunal acknowledged that her beliefs were protected under the Equality Act 2010 but held that she had not experienced direct discrimination or harassment due to those beliefs. Instead, the school’s reason for dismissal was tied to concerns that her shared posts might suggest she held homophobic or transphobic beliefs, thus violating the school’s policy.

However, H’s appeal found success before the EAT, which has now ordered her case to be reheard by the employment tribunal.

The EAT noted that the tribunal’s assessment of H’s claim needed to take into account her rights under the European Convention on Human Rights, specifically Article 9 (freedom of thought, conscience, and religion) and Article 10 (freedom of expression). The tribunal failed to evaluate whether the school’s actions constituted a proportionate interference with H’s ECHR rights. Moreover, it did not perform the necessary balancing exercise between the interference with her rights (disciplinary action) and the school’s objectives (upholding the conduct policy).

According to the EAT, the tribunal adopted an incorrect approach in this matter by neglecting to consider whether the school’s actions resulted from a manifestation of H’s beliefs. The tribunal should have assessed whether there was a direct connection between H’s protected beliefs and her Facebook posts, rather than viewing it through the lens of the school’s interpretation. It was insufficient for the tribunal to determine that the respondent’s motivation was merely a concern that H might be perceived as holding “wholly unacceptable views.” Instead, they should have assessed whether the Facebook posts genuinely represented H’s beliefs and then conducted the necessary balancing exercise to evaluate the justifiability of the school’s response.

To guide future tribunals, the EAT outlined fundamental principles for assessing the proportionality of any interference with Article 9 and Article 10 rights. In any democratic society, the freedom to express beliefs and opinions, regardless of their popularity or mainstream acceptance, is a fundamental right. However, these rights are not absolute and may be limited or restricted when necessary to protect the rights and freedoms of others. Determining the objective justification for such limitations will always be context-specific and will depend on the nature of the employment involved.

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