How can employers regulate private expression of controversial beliefs?

The Employment Appeal Tribunal has given new guidance on how employers should deal with the expression of gender critical views and other controversial beliefs by its workers, where these could have an impact on service users or other staff. This ruling comes following Mrs Higgs’ third appearance in the EAT in her long-running dispute with Farmor’s School.

The key issue is whether the School (a state secondary) directly discriminated against Mrs Higgs when it dismissed her because of “florid and provocative” Facebook posts in which she expressed and endorsed gender-critical views. The School believed the posts were evidence that she had a “negative attitude to LGBT people”, although Mrs Higgs denied this. That was a concern because Mrs Higgs was employed as pastoral administrator and work experience manager, and both roles involved close interaction with potentially vulnerable pupils.

The employment tribunal dismissed her claim in October 2020. She appealed, but there has been a long delay in getting a decision because Mrs Higgs successfully challenged the composition of the EAT panel on two occasions. In the end, it was agreed that the case would be heard by a single judge, rather than by a panel including lay members.

The EAT has now decided that the employment tribunal approached matters wrongly when dismissing the claim, because it had failed to engage sufficiently with the human rights issues that were bound up in deciding whether Mrs Higgs had been dismissed because of her protected beliefs. In a case like this – where what has been said on social media, however objectionable, was closely connected with protected beliefs – the employment tribunal should have appreciated that Article 9 (freedom of religion) and Article 10 (freedom of speech) of the European Human Rights Convention were engaged. So, as part of the assessment of the reasons for her dismissal, it should have recognised the importance of these “foundational” rights and the stringent criteria that needed to be met before any interference with them could be justified.

But how should an employment tribunal go about answering this question? The EAT emphasised that there is no “one size fits all” approach. Each case needs to be approached afresh. However, it was persuaded to give some guidance on the factors which should be considered – both in this case when it returns to the tribunal, and in other similar cases in the future. They include:

• What the claimant said and the tone which they used
• The size and nature of the potential readership for the offending remarks
• The degree of risk that the worker could be regarded as representing the views of the employer
• Whether there is a power imbalance between the worker and others whose rights the employer is seeking to protect
• Any potential impact on vulnerable service users or clients
• Whether the limitations imposed on the worker are the least intrusive possible

So when will these factors point towards interference being justified – and hence not discriminatory?  The more combative the tone and the wider the audience for the remarks, the more likely it is to be justifiable to seek to restrict what is being said, particularly where vulnerable service users may be affected. It is also clear from other passages in the judgment that workers should be given clear guidance on what is expected of them when making private social media posts. In addition, it will be easier to justify imposing restrictions on the tone and frequency of the posts, rather than an outright ban.

The new guidance reflects the principles that can be distilled from previous case law, but this is the first time that the EAT has set them out in one place. It is hoped that this will make it easier for workers and their employers to resolve disputes over freedom of religious expression and freedom of speech, thought that may be a little optimistic. It may be more realistic to focus on refining existing social media guidance in advance of any dispute, ensuring that any restrictions take into account the principles established in this latest ruling.

As far as the dispute between Mrs Higgs and her employers is concerned, we will have to wait for another tribunal hearing before we know the final outcome.