Transcription

• Speaker #0

  Today in the Lefevre HR and Employment Law podcast, we're discussing a recent ruling by the Court of Appeal in the case of Higgs and Farmor School, in which it was found that a Christian school counsellor's dismissal for posts she had made on social media was discriminatory. The school counsellor was dismissed after the school she worked for received a complaint from a third party about her social media posts. The posts in question related to her gender-critical views and her belief that same-sex marriage shouldn't be equated with traditional marriage between a man and a woman, especially in the context of teaching children at primary school level. At the initial hearing, an employment tribunal found that while the school counsellor's beliefs, which were rooted in her belief in Christianity, amounted to a philosophical belief and therefore afforded her protection under the equality legislation, her dismissal had been fair and it dismissed her discrimination claim. The councillor appealed to the Employment Appeal Tribunal, which emphasised the importance of balancing the right of an employee to express their beliefs against the needs of an employer, including its need to manage its reputation, but ultimately found in favour of the school and also determined that the councillor's dismissal was justified. The councillor then appealed to the Court of Appeal, which overturned the Employment Appeal Tribunal's decision, finding that the councillor's dismissal was discriminatory. In its judgment, the Court of Appeal confirmed that it is directly discriminatory for an employer to dismiss or discipline an employee because they expressed a religious or philosophical belief, even if that belief is controversial. The fact that an employee may hold controversial views is not on its own justifiable reason to dismiss, even if the employer, or some third party, finds those beliefs offensive. However, if an employee expresses their beliefs in an objectively inappropriate way, that can be grounds for disciplinary action. For example, if the way the belief is expressed is insulting or disruptive, the employer might have grounds to take action, but those actions must be proportionate. In particular, the court found that the counsellor had never expressed the views contained in her social media posts at work, nor had she ever treated her students in a discriminatory way. The court issued a reminder that there is no right not to be offended. Just because someone finds an employee's belief offensive doesn't mean the employer has free reign to take action against them. In this case, being offended by the views the counsellor expressed and fearing damage to the school's reputation because of those views wasn't enough to justify a dismissal. While employers often argue that if an employee doesn't understand the impact of their words, they might deserve a harsher sanction on the basis this tends to suggest that they will not modify their behaviour going forward, the court made it clear that in this case that wasn't a factor, since the school hadn't at any point given the counsellor any guidance on how to express her views more moderately. It advised that essentially the key is to exercise proportionality. It's not enough for an employer to act on a complaint just because it's controversial. It has to carefully assess the situation and make sure that any disciplinary action taken is proportionate to what was said and how it was said. The Court of Appeal's decision highlights the dangers for an employer of allowing itself to make a snap decision when receiving complaints about the way an employee has expressed their protective beliefs. While each case of this nature is fact-sensitive, what remains consistent is that the employer's response must be proportionate and objectively justified. Look out for further episodes in this series to stay up to date on all things HR and employment law related.