Kristie Higgs wins belief-discrimination case

Kristie Higgs has won her appeal in the belief-discrimination case of Higgs v Farmor’s School. The judgment was handed down by the Court of Appeal today.

The judgment confirmed that robust speech is protected as a “manifestation” of a religious or philosophical belief – the threshold for “objectionable” expression is high, and employers should not not act disproportionately based on subjective activist complaints.

The case concerning Kristie Higgs, an administrator and work-experience manager at a Church of England secondary school, has been running since April 2019. Higgs was fired after the school received a single email complaining about her personal Facebook posts from someone who said they found her views “homophobic and prejudiced … against the lgbt community” and “offensive”.

Sex Matters intervened in the case at the Court of Appeal as it concerned not only justice for Mrs Higgs, but the broader question of how courts and tribunals should approach religious or philosophical belief-discrimination cases concerning the “manifestation” of belief – when other people are offended by someone expressing their protected beliefs. The Equality and Human Rights Commission, the Church of England Archbishops’ Council and the Free Speech Union also intervened. Kristie Higgs is supported by the Christian Legal Centre.

Higgs, who is also a mother of children in primary school, had shared posts about sex education in primary schools that the tribunal described as “florid”, saying: “They are brainwashing our children!” and “The LGBT crowd with the assistance of the progressive School systems are destroying the minds of normal children by promoting mental illness”. Her employer called her in for a six-hour investigation meeting and then fired her for gross misconduct. 

The Court of Appeal found that this was disproportionate, and unlawful discrimination based on her belief. It overturned the judgment by the Employment Appeal Tribunal (EAT) that her case should go back to be considered afresh by the Employment Tribunal with guidance to apply a human-rights test to assess whether the school’s actions “were prescribed by law, and were necessary for the protection of the rights and freedoms of others”. 

In sending the case back to be reconsidered, Mrs Justice Eady, President of the EAT, had provided guidance to assist the employment tribunal in this case, and more generally to inform employers and employees “as to where they stand on issues arising from the manifestation of religious or other philosophical beliefs”. She had adopted a set of nine “considerations” provided by the Archbishops’ Council, which said that employment tribunals should give regard to the tone and extent of the manifestation and “the extent and nature of the intrusion on the rights of others”.

Sex Matters intervened because we were concerned that this guidance would lead overcautious and frightened employers to shut down gender-critical speech if someone complained that it was “objectionable”,  on the misunderstanding that this means that the person raising the objection had relevant human rights which had been intruded on.

We said the guidance was unwieldy and incapable of being understood by anybody but a specialist lawyer. 

The judgment

The judgment by Lord Justice Underhill (supported by Lord Justice Bean and Lady Justice Falk) concludes that:

“In my opinion the ET would be bound to find that the Claimant’s dismissal was not objectively justified and accordingly that it constituted unlawful discrimination.”

While Lord Underhill does not remove the EAT’s guidance to consider the context of an employer’s actions, he qualifies it somewhat, saying that it will not be necessary – or always useful – for a tribunal to structure its reasoning by reference to the nine “considerations”.

“All of them are potentially relevant; but in practice, as the EHRC observed, the focus of the issues in any given case will only be on some of them, and there may be some cases where are other considerations – or considerations which do not neatly fit into her formulation – may be relevant.”

Lord Underhill said that “the employer’s rights under the employment contract provide the necessary framework of ‘law’” and the full human-rights proportionality test could be replaced by a more compressed version. 

He also said that the burden is on the employer to prove in the Employment Tribunal that its action can be objectively justified. He said that the word “objectionable”, which has become common currency in belief cases, may be inapt as shorthand for the phrase “to which objection could justifiably be taken” and that the term “inappropriate” might be better. He emphasised that even where reputational harm, or a risk of it, is shown, the interference by the employer must be proportionate.

Agreeing with Lord Underhill, Lady Falk said:

“Speaking for myself, I find ‘inappropriate’ the more helpful term, for two reasons. First, it reduces the risk of the words ‘to which objection could justifiably be taken’ being incorrectly read as permitting regard to be paid to the risk that some readers might wrongly read what is said in a way that a reasonable reader would not. Secondly, it more obviously conveys that the forum and context for what is said is relevant, as well as the content and manner. For example, something that might be unproblematic on a private Facebook page could justify different treatment if communicated in a work setting.”

Sex Matters is grateful to Akua Reindorf KC and Dr Michael Foran of Glasgow University for developing our intervention.

Employers facing offended complaints about personal social-media posts concerning contentious topics should take this judgment as a signal to think twice before jumping into action. They should not automatically assume that if someone shouts “I am offended, my human rights have been breached!” there has been any breach of their human rights.