Media myths: What did the judge really say in Higgs v Farmor's School?
Author: Stephen Simpson
The Court of Appeal has been making the headlines after it found in Higgs v Farmor's School and others that a Christian school assistant's dismissal for social media posts expressing opposition to the ideas of transgenderism, gender fluidity and same-sex marriage was discriminatory. But did the headlines capture the essence of the court's ruling?
In this high-profile case, the Court of Appeal accepted that:
- the teaching assistant's beliefs that gender is binary and same-sex marriage cannot be equated with marriage between a man and a woman are protected beliefs; and
- even if the school fundamentally disagreed with the content of the posts, the dismissal was "unquestionably a disproportionate response".
Some parties - including those with a vested interest such as Christian Concern - have interpreted the decision as being a "victory for free speech" that makes "ideological censorship illegal".
While this is true up to a point, the practical implications of the Court of Appeal ruling are more nuanced than that. The Court of Appeal has certainly made it clear that an employee's blunt expression of an honest and deeply held belief is not automatically a ground for dismissal, even if most (or all) of the people in the workplace find the beliefs distasteful.
There was no evidence that the reputation of the School had thus far been damaged: its concern was about potential damage in the future... As it also accepted, there was no possibility that, even if readers of the posts associated the Claimant with the School, they would believe that they represented its own views.... Even if readers of the posts might fear that the Claimant would let her views influence her work, neither the panel nor the ET believed that she would do so. There was no reason to doubt her assertion that her concern was specifically about the content of sex education in primary schools; that she "wouldn't bring this into school"; and that she would never treat gay or trans pupils differently... There had indeed been no complaints about any aspect of her work for over six years.
Judgment in Higgs v Farmor's School and others
However, in light of the Higgs v Farmor's School and others case, deciding where disciplinary action is justified when the manifestation of an employee's beliefs may be regarded as objectionable remains difficult for employers.
Although a non-binding first-instance decision, the subsequent employment tribunal decision in Dybowski v The Bishop of Llandaff Church In Wales High School provides a useful example where the employer was found to be justified in dismissing an employee for expressing his strong views on a variety of controversial subjects at various times during an internal diversity training session, with colleagues in meetings and on social media. In this case, the Christian teaching assistant's stated beliefs included that:
- a true marriage can only be between a man and a woman;
- human life begins at conception and abortion is the taking of innocent life and/or the murder of innocent life; and
- sex is fixed and gender fluidity does not exist.
This Tribunal recognises the challenges faced when balancing the competing rights of different groups and in particular in a school environment. The claimant has a right to hold his beliefs and to manifest them but he is under the same prohibitions as the rest of society to not discriminate or harass others. Every circumstance turns on the particular facts of the claim. The first respondent was entitled to want to exercise a degree of control over how beliefs were manifested within the school environment in accordance with the school's values given the potential power imbalance between teachers and pupils and in the context of potentially vulnerable pupils.
Judgment in Dybowski v The Bishop of Llandaff Church In Wales High School
The employment tribunal stressed that, while the teaching assistant was entitled to freedom of expression, that entitlement is qualified - he is "under the same prohibitions as the rest of society to not discriminate or harass others". The tribunal accepted the employer's evidence that staff had become gravely concerned about the way in which he had expressed his views, including:
- the highly charged language that he had used, such as references to "true marriage" in the context of same-sex marriages and "murder" in the context of the abortion debate;
- alarm at how the expression of his beliefs might impact on the school's values, especially given that he had admitted that he was a "campaigner and debater" who is very active on social media;
- a reasonable concern that he might seek to influence pupils in the expression of his beliefs, especially given that he had previously tried to set up a debating club at the school and pupils could find out about his social media activities with ease; and
- his apparent lack of awareness of the school's social media guidelines.
Rejecting the claims for religion or belief discrimination, the employment tribunal concluded that the school could exercise a degree of control over how the teaching assistant manifested his beliefs, in accordance with its values.
