Christian Teacher’s Dismissal Unlawful Discrimination on the Grounds of Religious Belief

In Higgs v Farmor’s School & Ors, the Court of Appeal has decided that the dismissal of a school employee for posts she had made on her personal Facebook page criticising the nature of sex education in schools and, in particular, the teaching of ‘gender fluidity’ was not objectively justified and accordingly constituted unlawful direct discrimination on the ground of religion or belief.

Mrs Kristie Higgs was employed by the school as a pastoral administrator and work experience manager. She was dismissed for gross misconduct for posts she had made on Facebook criticising the nature of sex education in schools and the teaching of ‘gender fluidity.’  Mrs Higgs brought claims of direct discrimination and harassment on the ground of her protected beliefs, including her lack of belief in gender fluidity and that a person can change their biological sex. The posts included re-posted quotes, such as “the LBGT [sic] crowd with the assistance of the progressive school systems are destroying the minds of normal children by promoting mental illness”.

The Court of Appeal concluded that the tribunal was bound to find that Mrs Higg’s dismissal was not objectively justified and accordingly constituted unlawful discrimination.

The Court of Appeal was prepared to assume, without deciding, that the school was entitled to take objection to the Facebook posts on the basis that the language used was gratuitously offensive to gay and/or trans people in the way that it described the conduct of ‘the LGBT crowd’ in the context of sex education in schools, which was relevant to Mrs Higg’s work. However, Mrs Higg’s dismissal was unquestionably a disproportionate response.

For these reasons, the Court held that Mrs Higg’s dismissal was not even arguably a proportionate sanction for her conduct. Her conduct was unwise but it did not justify her dismissal, particularly as she was a long-serving employee against whose actual work there was no complaint of any kind.

The case is significant in reinforcing the careful balancing act necessary before an employer can lawfully pursue disciplinary action which might be discriminatory unless it can justify its actions and demonstrate that these were proportionate.