School employee wins Court of Appeal battle over dismissal for Facebook posts on teaching of “gender fluidity”

The Court of Appeal has allowed an appeal from a Christian school employee who was dismissed because she posted messages on her personal Facebook account opposing the teaching in schools, and in particular primary schools, of “gender fluidity” and that same-sex marriage is equivalent to marriage between a man and a woman.

The Court (Lord Justice Underhill, Lord Justice Bean and Lady Justice Falk) found that Kristie Higgs’ dismissal from Farmor’s School, where she worked as a pastoral administrator and work experience manager, constituted unlawful discrimination on the ground of religion or belief.

The Court noted that most of the text of the Facebook posts was not Higgs’ own but was copied from other posts.

A parent at the school saw the posts and complained to the headteacher.

Higgs brought proceedings in the Employment Tribunal for unlawful discrimination on the grounds of religion or belief contrary to the Equality Act 2010.

The ET held that her beliefs about gender fluidity and same-sex marriage were protected by the Act; and in the light of the later Forstater decision that conclusion was not disputed by the school. However, Higgs’ claim was dismissed on other grounds.

The Employment Appeal Tribunal found that the ET’s reasons for dismissing the claim were legally flawed and ordered that the claim be sent back to it to be re-determined on the correct legal basis.

Higgs appealed to the Court of Appeal on the basis that the EAT should not have sent the claim back to the ET and should have found for itself that she had been unlawfully discriminated against.

Allowing the appeal, Lord Justice Underhill broadly summarised his conclusions as follows:

1. The dismissal of an employee merely because they have expressed a religious or other protected belief to which the employer, or a third party with whom it wishes to protect its reputation, objects will constitute unlawful direct discrimination within the meaning of the Equality Act.
2. However, if the dismissal is motivated not simply by the expression of the belief itself (or third parties’ reaction to it) but by something objectionable in the way in which it was expressed, determined objectively, then the effect of the decision in Page v NHS Trust Development Authority is that the dismissal will be lawful if, but only if, the employer shows that it was a proportionate response to the objectionable feature – in short, that it was objectively justified...
3. Although point (2) modifies the usual approach under the Equality Act so as to conform with that required by the European Convention of Human Rights, that “blending” is jurisprudentially legitimate.... In the present case the Claimant, who was employed in a secondary school, had posted messages, mostly quoted from other sources, objecting to Government policy on sex education in primary schools because of its promotion of “gender fluidity” and its equation of same-sex marriage with marriage between a man and a woman. It was not in dispute, following the earlier decision of the EAT in Forstater v GCD Europe, that the Claimant’s beliefs that gender is binary and that same-sex marriage cannot be equated with marriage between a man and a woman are protected by the Equality Act.
4. The school sought to justify her dismissal on the basis that the posts in question were intemperately expressed and included insulting references to the promoters of gender fluidity and “the LGBT crowd” which were liable to damage the school’s reputation in the community: the posts had been reported by one parent and might be seen by others. However, neither the language of the posts nor the risk of reputational damage were capable of justifying the Claimant’s dismissal in circumstances where she had not said anything of the kind at work or displayed any discriminatory attitudes in her treatment of pupils.

Lord Justice Underhill said he did not believe that dismissal was even arguably a proportionate sanction for the claimant’s conduct.

He added: “It was no doubt unwise of her to re post material expressed in (to use the ET’s words) florid and provocative language with which she did not agree, and in circumstances where people were liable to realise her connection with the School. But I cannot accept that that can justify her dismissal, and still less so where she was a long-serving employee against whose actual work there was no complaint of any kind.”

Lord Justice Bean agreed. Lady Justice Falk gave a concurring judgment.