In the current global climate, many employees will have views that they wish to express on social media, that others may disagree with. This can lead to conflict and complaints.
To what extent an employer can interfere in an employee’s use of social media can be difficult to navigate. Earlier this year, the Court of Appeal in Higgs v Farmor’s School ruled that a teacher dismissed for gross misconduct in relation to Facebook posts had been directly discriminated against on the grounds of her protected belief.
This case provides useful guidance to employers trying to strike the right balance. Whilst this case applies to gender critical views, it is likely that the principles will be relevant to an expression of views on other topical issues.
Facts
Ms Higgs, a devout Christian, worked at Farmor’s School. She posted to her personal Facebook page to voice her concerns about the teaching of gender identity and same-sex marriage in schools. A parent complained about the posts which led to an investigation. Ms Higgs was dismissed for gross misconduct primarily on the basis that her actions could harm the school’s reputation.
Ms Higgs brought claims for direct discrimination and harassment based on her gender critical beliefs.
Employment Tribunal (ET) Decision
The ET decided that Ms Higgs gender critical beliefs were philosophical beliefs protected by the Equality Act 2010. However, the Tribunal did not agree that Ms Higgs had been subject to discrimination. Ms Higgs was dismissed due to the manner in which she had expressed those beliefs on Facebook which they considered to be inappropriate and inflammatory, not because of those beliefs.
Appeals
The Employment Appeal Tribunal (EAT) upheld Ms Higgs’ appeal. The ET had failed to question whether the school’s conduct was because of, or related to, the expression/manifestation of Ms Higgs’ protected beliefs. They should have considered was there a sufficiently close link between her beliefs and social media posts. The EAT concluded that the ET failed to carry out a proportionality assessment of the school’s actions against Ms Higgs’ rights to freedom of belief and freedom of expression.
When the case reached the Court of Appeal, the Court determined that the dismissal was discriminatory. The decision to dismiss was disproportionate to the issues. The Court considered:
- There is no legal right “not to be offended”.
- Her views did not impact her work. She was expressing personal views and had not made similar comments in the workplace.
- There was no evidence that there had been any damage to the school’s reputation.
In these specific circumstances, dismissal was a disproportionate reaction to the posts. It was not specifically considered whether a lesser disciplinary sanction would have been acceptable in this case.
Key points for employers
Dismissing an employee because they hold a protected belief is unlawful discrimination. Dismissing an employee because of something objectionable in the way they express the belief is potentially justified. However, dismissal must be a proportionate reaction.
Before an employer considers taking action against an employee for expressing what they may consider to be offensive views on social media, issues to consider will include: have the views been expressed in a personal or workplace setting; does the way in which an employee expressed their views have any impact on their work or their interactions with work colleagues and contacts; and is there any evidence of a genuine risk to the reputation of the business.
To ensure that employees are aware of the expectations around social media use, employers should ensure that they have up to date social media policies which clearly set out expectations around online behaviour, what behaviour may amount to misconduct, and the potential consequences if these expectations are not met.
Nicola Smyrl is a Partner at Taylor Walton Solicitors www.taylorwalton.co.uk