Gender Critical Beliefs Case Remitted to Employment Tribunal

Background

Mrs. Higgs is a Christian who holds gender critical beliefs including a lack of belief in gender fluidity and a belief in marriage as being a union between one man and one woman. She made several Facebook posts relating to her views on the teaching in schools of same-sex relationships and marriage, and education on gender being a matter of choice. Her posts resulted in a parental complaint.

Mrs. Higgs was dismissed from her post. She brought claims of direct discrimination and harassment on the grounds of her religious beliefs.

The Tribunal found that her beliefs were protected, but that she was not discriminated against because of them. It found that the school had dismissed Mrs. Higgs because of its concerns that someone reading her comments might reasonably consider that she held homophobic or transphobic views, and that the reason for the school's actions was therefore not because of or related to Mrs. Higgs' protected beliefs. Mrs. Higgs appealed to the EAT.

EAT Decision

The EAT upheld the appeal, and has remitted Mrs. Higgs' case to the Employment Tribunal for determination. The EAT identified an error in the Tribunal's reasoning, namely that it failed to properly engage with the question of whether there was a close or direct nexus between Mrs Higgs' Facebook posts and the beliefs she had relied upon in her claims. The views of the School were irrelevant to the question of whether the necessary close link could be established.

If the link could be established, then the Tribunal would need to go on to consider whether:

• the school's treatment of Mrs. Higgs was because of, or related to, the manifestation of her belief
• the reason for the treatment was that Mrs. Higgs expressed her belief in a justifiably objectionable way

In order to determine whether Mrs. Higgs' manifestation of her belief was objectionable, the Tribunal will need to carry out a proportionality assessment. The Tribunal will need to consider whether the school's actions were prescribed by law and were necessary to protect the rights and freedoms of others, notwithstanding Mrs. Higgs' rights to freedom of belief and freedom to express her beliefs.

Learning Points

This case demonstrates the importance of engaging with a person's protected beliefs, including the right to hold or express views on controversial matters of public interest. A balancing exercise is required between a person's right to express such views, and an employer's right to take action if such views are expressed in a justifiably objectionable way.

For further advice on dealing with employees who views on controversial matters, please contact Ellie Boyd in our Employment team on  020 7665 0940, or complete the form below.