UK Court of Appeal provides guidance on freedom of expression in the workplace

The question for the Court of Appeal was whether an employer can discipline an employee whose personal views cause offence to other staff or third parties such as customers. The issue is legally complex because Equality Act obligations not to discriminate must be read alongside the right to freedom of thought, conscience and religion under the European Convention on Human Rights.

Mrs Higgs worked in a school as a pastoral administrator and work experience manager. No one had ever complained about her performance or dealings with students or other staff. In 2018 she reposted articles on her personal Facebook page expressing gender-critical views and opposition to same-sex marriage based on her Christian beliefs. They were protected beliefs under the Equality Act. When a parent complained about the posts, the school was concerned about the impact of the comments on its reputation and dismissed Mrs Higgs for gross misconduct.

She claimed that her dismissal was discrimination because of her religion or belief. The claim failed in the employment tribunal, but her subsequent appeal succeeded in the EAT, which remitted the case to the employment tribunal. She appealed to the Court of Appeal, arguing that the EAT should have found that her dismissal was direct discrimination.

The Court of Appeal decision

The Court of Appeal confirmed that an employee’s right to manifest their beliefs is qualified. If an employee expresses their views in a way that is inappropriate or objectionable, and their employer acts in consequence, the reason for the treatment is not because of the employee’s beliefs themselves but rather the way in which they have manifested them. 

That involves assessing whether an employee has behaved in a way to which their employer could legitimately object, which is an objective question. It depends on what the employee has said and how a reasonable reader would understand their words. If the language is inappropriate or objectionable, the employer can respond as long as its actions are proportionate. Essentially this requires employers to objectively justify disciplining an employee for expressing protected views.

On the facts of this case, Mrs Higgs’ dismissal was not objectively justified. In principle, the school had a legitimate interest in protecting its reputation. Whether that is true in other cases will depend on factors such as whether:

• the employee’s views have some connection with the employer’s business;
• the employee has expressed themselves in a way that is egregiously offensive or merely intemperate; and
• there is a risk that the employee’s views could be attributed to the employer. 

Even though the school was entitled to be concerned about its reputation, Mrs Higgs’ dismissal was not proportionate. The language she had used was not grossly offensive and did not attack individuals. It was relevant to her culpability that she had re-posted items, not drafted them herself, that the comments were made on her personal Facebook page, held in her maiden name, and that they did not refer to the school. 

There was no evidence that the school had suffered reputational damage, and no possibility that someone would take Mrs Higgs’ views for the school’s. Neither the disciplinary panel nor the tribunal believed she would let her views influence her work and there had been no complaints about her behaviour at any point during her employment. Although her language was offensive and provocative, and the school was entitled to investigate the parent’s complaint, the posts were not sufficiently serious to justify dismissal.

Authored by Jo Broadbent, Anvita Sharma and Stefan Martin.