Higgs v Farmer School - landmark case for free speech!
Head of Employment, Kate Lea, explains...
As an employment lawyer I have been watching with interest the case of Higgs v Farmor’s School make its way through the legal system.
Last week the Court of Appeal handed down what has been described as a landmark ruling for freedom of speech.
For those not familiar with the background facts of this case:
- Ms Higgs worked at Farmor School. She was dismissed for gross misconnect for having made Facebook posts raising concern about extreme sex education being taught in the school which it was suggested were homophobic and transphobic.
- Ms Higgs appealed this decision asserting that her dismissal was discriminatory due to her religious beliefs and the fact that she didn’t believe in gender fluidity or that someone could change their biological sex, both beliefs being recognised as worthy of protection under the Equality Act.
- The Employment Tribunal initially dismissed her claims, finding she had been dismissed because of the way in which she had expressed her views, which it was suggested could have caused reputational damage to the school.
- However, the Employment Appeal Tribunal held the Tribunal when reaching their decision had failed to consider whether her dismissal was a proportionate response to the way she had expressed her beliefs.
Last week, the Court of Appeal found that the School’s decision to dismiss was not a proportionate response and constituted unlawful discrimination. In reaching this finding it recognised that Ms Higgs’ posts, whilst objectionable by some were a ‘long way’ from directly attacking the LGBT community and were not intended to incite hatred and were not grossly offensive language that might justify dismissal, acknowledging the posts gave no risk to causing reputational damage to the school given there was no possibility that readers would take the posts as being representative of the schools views.
This case provides welcome guidance to employment law practitioners seeking to grapple with claims that entail competing rights. It makes clear that whilst employers have an obligation to provide an inclusive work environment it does not prohibit employees expressing their beliefs, even where those believes may be perceived by some as offensive. That is not to say employees are free to do and say what they want, but it does mean that employers need to think carefully before taking draconian action, such as disciplining or dismissing employees for having expressed views in fear of ‘possible’ reputational damage. Employers need to ensure that they take a well-considered and proportionate response to any concerns raised and to avoid knee jerk, risk averse decisions.
This remains a challenging area for employers and employees and this continues to be an area where we are likely to see more claims. Every claim is case specific. If you therefore need help and guidance then don’t feel that you need to walk the tight rope on your own. We can help and support you navigate these challenges.
If you believe you have a situation where you require legal advice, please contact us on telephone 0116 212 1000 or 01858 445 480, alternatively fill in the free Contact Us form and we will get in touch as soon as possible.
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