Employment Appeal Tribunal holds that a school unlawfully dismissed a Christian teacher based on her Facebook posts on gender fluidity

There have been a number of recent cases that address situations of conflicting protected beliefs, particularly involving the LGBTQ+ community. Conflicting beliefs between the LGBTQ+ community and many major religions are far from new and related issues still regularly hit the headlines.

Back in 2018, the “Gay Cake” case made headlines when the Supreme Court held that a Christian bakery’s refusal to bake a cake with the QueerSpace logo and the headline ‘Support Gay Marriage’ did not amount to discrimination on the grounds of sexual orientation or political opinion.

In 2021, in the case of Forstater v CGD Europe and ors, a woman brought a claim for discrimination based on her philosophical belief, after she was no longer offered consultancy work from a company following her tweets with her controversial views on transgenderism. Her claim was initially dismissed by the Employment Tribunal but later allowed upon appeal.

Higgs v Farmor’s School

Recently, it was found in Higgs v Farmor’s School that an employer unlawfully dismissed an employee for manifesting a protected belief under the Equality Act 2010.

Mrs Higgs worked at a secondary school as a pastoral administrator and work experience manager. She made some posts on her private Facebook account which criticised LGBTQ+ relationship education being taught in schools and, particularly, education on gender fluidity.

An anonymous complaint was subsequently made to the school headteacher, criticising the posts and labelling them as homophobic and transphobic.

Mrs Higgs was suspended from her role at the school pending investigations and was eventually dismissed for gross misconduct.

Mrs Higgs brought a claim to the Employment Tribunal for discrimination and harassment based on her religious belief, as a protected characteristic under the Equality Act. She claimed that she held a number of beliefs (and non-beliefs) and that she had been discriminated against based on those beliefs. She claimed that she held the following beliefs:

• Lack of belief in “gender fluidity”
• Lack of belief that someone could change their biological sex/gender
• belief in marriage as a divinely instituted life-long union between one man and one woman
• Lack of belief in “same sex marriage” (recognising that same sex marriage was legal, she believed this was contrary to Biblical teaching)
• Opposition to sex and/or relationship education for primary school children
• A belief that when unbiblical ideas or ideologies are promoted, she should publicly give witness to Biblical truth
• A belief in the literal truth of the Bible, and in particular Genesis 1v 27: “God created man in His own image, in the image of God He created him; male and female He created them.”

Can a lack of belief in gender fluidity be protected under the Equality Act 2010? The Grainger test.

The school argued that Mrs Higgs’ lack of belief in gender fluidity and lack of belief that someone could change their biological sex/gender, could not be a protected belief under the Equality Act 2010.

The Employment Tribunal rejected this argument. It was found that this was a belief that met the Grainger (Grainger plc v Nicholson) test. For a philosophical belief to be protected under the Equality Act 2010, the following criteria must be met:

1. The belief must be genuinely held
2. It must be a belief and not an opinion or viewpoint based on the present state of information available
3. It must be a belief as to a weighty and substantial aspect of human life and behaviour
4. It must attain a certain level of cogency, seriousness, cohesion and importance
5. It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.

The judgment

The Employment Tribunal dismissed Mrs Higgs’ claim. It held that the school had dismissed her because it had been concerned that someone reading her Facebook posts could reasonably conclude that she held homophobic and transphobic views and as such there was no direct link between dismissing Mrs Higgs for gross misconduct and Mrs Higgs’ protected belief.

Mrs Higgs appealed this decision to the Employment Appeal Tribunal, and her appeal was allowed.

In reaching its decision, the Employment Appeal Tribunal considered Article 9 of the European Convention on Human Rights (ECHR) which states (in part) that everyone has the right to freedom to manifest their religion or belief. It was found that the Employment Tribunal had not properly considered the link between Mrs Higgs’ Facebook Posts and her protected beliefs. The Employment Appeal Tribunal held that the Employment Tribunal should have done so, and then should have taken the further step of carrying out a proportionality assessment/ balancing exercise to consider whether the manifestation of her beliefs was objectionable or not. The Employment Tribunal should have interpreted the Equality Act 2010 in a consistent manner with the provisions in the ECHR.

Impact

This is not the end of the road when it comes to Mrs Higgs’ case, as the Employment Appeal Tribunal remitted the case back to the ET for proper consideration and determination. We will be sure to keep you posted on any updates in this case so please watch this space. Recent cases indicate that holding ‘anti-LGBTQ+’ views can be a protected belief under the Equality Act 2010, meeting the Grainger criteria. However, in this case, the Employment Appeal Tribunal made it clear that it has no input into the controversial discussion. Specifically, the judgment said:

“The particular facts of the case may also be seen to touch on matters of current public debate relating to same sex relationships, transgender issues and the way such matters are addressed in schools. I make clear, however, that I express no view as to the merits of either side of that debate; the role of the Employment Appeal Tribunal is limited to the determination of such questions of law as arise from the judgment of the Employment Tribunal (“ET”) under appeal.”