After the Court of Appeal handed down a landmark decision today in the case of Higgs v Farmor’s School, employment lawyers and other experts provide their reaction to the ruling, and examine the implications for HR and employers.
Robert Lewis, partner, Mishcon de Reya
“This is a really important judgment with profound implications for how employers, and educational institutions, should manage situations where an employee expresses personal opinions that might be offensive to others.
“The Court of Appeal has confirmed that disciplinary action might be discriminatory unless an employer can justify their actions and demonstrate that they were proportionate. There are numerous areas where situations like this can arise, such as employees expressing themselves in relation to matters of sexual orientation, gender identity or political issues (such as the conflict in the Middle East). Employers and educational institutions should take early and careful legal advice if issues like this arise.
Higgs v Farmor’s School
“I am concerned about how this judgment might impact vulnerable minority groups as some employees may feel they have carte blanche to express offensive opinions and employers will be reluctant to act. But it remains as important as ever for employers to ensure that they prevent discrimination and unlawful harassment against their employees.
“The judgment will impact other cases currently making their way through the judicial process, such as the David Miller v University of Bristol case.”
Monica Kurnatowska, employment partner, Baker McKenzie
“The Court of Appeal’s endorsement of the practical guidance given by the EAT will be welcomed by employers dealing with complaints about an employee’s manifestation of their beliefs.
“It remains a challenging area for employers as it’s a balancing act between the employee’s freedoms and those of others, but this judgment upholds a framework for striking that balance.
“Some of the key things for employers to remember in making these decisions are: (1) there is no right not to be offended; (2) consider the context – determining whether something is objectionable will be context-specific; (3) do not make assumptions about an employee’s views or what an individual might do.”
Statement from Sex Matters, which intervened in the case
“Employers facing complaints about personal social media posts concerning contentious topics should take this judgment as a signal to think twice before taking action.
“They should not assume that if someone shouts ‘I am offended’ there has been any breach of their human rights.”
Joanne Moseley, senior associate solicitor, Irwin Mitchell
“This judgment is a landmark decision that provides authoritative guidance on how the law protects the expression of religious and philosophical beliefs in the workplace.
“Employees are entitled to hold and express views on controversial matters of public interest even when those views offend, shock or disturb others or don’t align with their employer’s EDI values.
“Employers often try and justify dismissing members of staff by arguing, like the school did in this case, that their behaviour has potentially damaged their reputation. This decision makes it very clear that employers need to properly consider what the person has actually said, the language they have used and whether it impacts their ability to do their job before rushing to judgment. The threshold for speech being objectionable is high.”
Kristie Higgs’ Facebook post. Image: Christian Concern
Alex Mizzi, legal director, Howard Kennedy
“The judgment simplifies the law but will make it harder in many cases for employers to dismiss employees who express controversial views via social media. The court emphasised that there is a difference between ‘objectionable’ and ‘grossly offensive’ language, with the former less likely to justify dismissal.
“The case suggests that where there is no evidence of an impact on the employee’s work, and the risk of reputational damage is speculative, dismissal is unlikely to be deemed proportionate in ‘protected belief’ cases and is likely to be an unfair dismissal. This will create even more difficult dilemmas for employers when the two-year qualifying period for such claims is removed under the Employment Rights Bill.”
Eugenie Freeman, senior associate, Kingsley Napley
“This landmark case sets a precedent for how employers should respond in situations where they need to balance the competing rights of freedom of expression and protection from discrimination. The judgment is clear that even potentially offensive beliefs are free to be expressed, provided that such views are not expressed in an objectively objectionable way.
“In today’s society, it is likely that the prevalence of employers having to deal with issues arising from employees expressing their views on social media platforms will continue to rise, and this judgment gives guidance on how employers will be expected to navigate such issues. This includes avoiding knee-jerk reactions when complaints are made and keeping in mind the principle of proportionality.
“These cases are very fact-specific and action that may be appropriate and proportionate in one case may not be in another. Employers would also be well advised to have in place clear policies and guidelines setting out their expectations from staff when publicly expressing views on sensitive and controversial topics, particularly if they are likely to be identified as someone connected to the organisation.”
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