Earlier this year, the FSU was granted permission to intervene in the Court of Appeal case of Higgs v Farmor’s School. The case will be livestreamed, across today and tomorrow (2nd and 3rd October) from the Court of Appeal website – the link is here.
The case concerns Kristie Higgs, a Christian pastoral administrator at Farmor’s School, who was dismissed after sharing social media posts that criticized LGBT+ lessons at primary schools. She described them on Facebook as an attempt to “brainwash children” and “promote mental illness”. A parent complained that these posts were homophobic and transphobic, which led to an investigation and her subsequent dismissal for gross misconduct.
Higgs filed a claim with the Employment Tribunal (ET), arguing that her dismissal constituted direct discrimination and harassment based on her religious beliefs. The ET found that while her beliefs were protected under the Equality Act 2010, the school dismissed her not for those beliefs themselves but because her posts could reasonably be perceived as hostile towards the LGBT+ community, which could harm the school’s reputation.
The Employment Appeal Tribunal (EAT) later reviewed the case and made two key rulings.
First, if the third-party objections are themselves discriminatory, then appeasing the objectors by dismissing the employee can itself be an act of discrimination by the employer. We agree with this, obviously.
Second, the EAT ruled that the employee can be fairly dismissed if: (1) the reason for the dismissal was not the belief itself but the objectionable manner in which it was expressed; and (2) dismissal was a proportionate interference with the employee’s right to freedom of expression. We disagree with this ruling: we believe the law makes no distinction between the belief and the manifestation of that belief, and trying to separate the two is a sleight of hand that can be used to justify to censorship.
In short, this important judgment threw up unresolved questions about a key issue in belief discrimination: when third parties object to an employee who expresses their perfectly lawful beliefs, can it ever be right to dismiss that employee?
Ben Cooper KC and Spencer Keen, both of Old Square Chambers, are acting pro bono as the FSU’s barristers. Our solicitor is Elliot Hammer of Branch Austin McCormick.
The decision of the President of the Court, Lord Reed, to accept our submission confirms the FSU’s position as the UK’s primary free speech organisation.
To help us to continue fighting important cases like these, please donate to our new legal fighting fund. The link is here.
