A Christian school worker who was dismissed for her private Facebook posts about same-sex relationships has won a significant legal victory. Writing in The Spectator, FSU Advisory Council member, Professor Andrew Tettenborn says the Court of Appeal’s decision confirms that employers cannot simply invoke ‘reputational damage’ to justify firing staff over personal beliefs. He goes on to warn, however, that free speech protections in the UK remain precarious. Workers who voice contentious views, even in a private capacity, may still feel pressured to self-censor to avoid losing their jobs. Here’s an extract:
Finally, some good news on the free speech front: a Christian school worker who lost her job after sharing posts about gay relationships has won a crucial legal battle.
Seven years ago, Kristie Higgs, a pastoral worker and mother at a primary school who held firm Christian views, used her private Facebook account to complain in colourful language about plans to rejig sex and relationships education in primary schools. One post referred to “brainwashing our children”. Another mentioned “suppressing Christianity and removing it from the public arena”.
Higgs also called on her Facebook friends to sign a petition. She felt particularly exercised about suggestions that gender was a matter of choice, and that same-sex relationships might be stated to be as good as heterosexual ones. These views were expressed, not at work or to co-workers, but in posts on a Facebook page open only to her friends. They did not directly mention Mrs Higgs’s connection with Farmor’s School in Fairford, Gloucestershire; and they used her maiden, rather than her more public married, name.
Mrs Higgs took legal action claiming that she had been discriminated against on the basis of her religious views. An employment tribunal sided with the school, but this week the Court of Appeal found in her favour.
There’s much to like about this result. The court confirmed that where an employer took exception to religious or philosophical views expressed by an employee privately, it could not dismiss the employee and hope to escape a charge of discrimination simply by reciting the mantra of reputational damage. It had to show objective justification, something that got progressively more difficult if the views were personal to the employee and not likely to be replicated at work. It also emphasised that the actual words used by the employee mattered: an employer could not fasten on the fact that those words might be misinterpreted as expressing views the employee did not really hold. Nor did it make much difference, it went on to say, that the employee might have used intemperate language.
The law remains enormously complex and uncertain. Yesterday’s decision ran to 181 numbered paragraphs over 56 pages of convoluted prose. It ranged over not only English law, but a good deal of retained EU law and Strasbourg human rights jurisprudence. Even then it made it quite clear that that there were cases where private statements of religious belief could be sanctioned by employers, while not stating precisely when they could not. It cannot be right that an employee’s rights to speak their mind can only be ascertained through extensive and expensive legal advice.
Even after this case, employees’ rights to say what they think remain disconcertingly limited. They stem not from specific provisions about free speech, but rather incongruously from the law against religious discrimination and its ad hoc extension to other sincerely-held philosophical beliefs. Mrs Higgs won, as did others, such as Maya Forstater, essentially because their employers were found to have dismissed them on the grounds of their manifestation of their beliefs about the nature of the world. This matters.
It need not be like this. What about a seriously radical idea: whatever an employment contract says, an employee has the right to speak their mind, outside and in a clearly private capacity, without sanction unless the employer can prove either a direct attack on it, or that the employee’s ability to do their job is substantially affected?
Come to think of it, the government has an Employment Rights Bill currently in parliament. This provides a golden opportunity to protect free speech. A deft amendment from the Tories or Reform (or both) to stop employers gagging their workers’ free speech would put Labour on the spot. Labour say they want a swing of power in favour of working people. Are they now prepared to live up to this by giving them the most fundamental right of all, the right to speak their mind? The squirming in Whitehall will be interesting to watch.
Worth reading in full.
