Employment Law Digest March 2025 – Case Updates

Protected Belief

In Higgs v Farmor’s School and others:

• Mrs Higgs was a practicing Christian and was employed at a school as a Pastoral Administrator and Work Experience Manager.
• On her personal Facebook page, she reposted content written by someone else, related to the teaching in schools of same-sex relationships, same-sex marriage and gender being a matter of choice. She added “Please read this! They are brainwashing our children!”
• A parent complained to the school that Mrs Higgs had expressed homophobic and prejudiced views. The school investigated, with the parent supplying other posts in which Mrs Higgs referred to gender fluidity as a “perverted vision” and stating “the LGBT crowd with the assistance of the progressive school systems are destroying the minds of normal children by promoting mental illness.”
• Mrs Higgs was summarily dismissed for gross misconduct, for breach of the school’s Code of Conduct and potential harm to its reputation.
• She brought a tribunal claim alleging discrimination due to her protected beliefs of:
  • Lack of belief in gender fluidity.
  • Lack of belief that someone could change their biological sex or gender.
  • Belief in marriage as a divinely-instituted lifelong union between one man and one woman.
  • Lack of belief in same-sex marriage, as contrary to Biblical teaching.
  • Opposition to sex and relationship education for primary school children.
  • A belief that when unbiblical ideas or ideologies are promoted, she should publicly witness to Biblical truth.
  • A belief in the literal truth of the Bible, and in particular Genesis 1 verse 27: “God created man in His own image, in the image of God He created him; male and female He created them”.
• The tribunal accepted that Mrs Higgs’ beliefs fell within the protection of the Equality Act 2010 but dismissed her claims of direct discrimination and harassment. It reasoned that she had not been dismissed for her beliefs but the “florid and provocative language” used in her posts which could be perceived as homophobic and transphobic, which in turn could harm the school’s reputation, making her dismissal a proportionate response. Mrs Higgs appealed this decision.
• The Employment Appeal Tribunal allowed her appeal. It found the Tribunal had failed to engage with the question of whether the school’s action was because of, or related to, the manifestation of her beliefs. It held that the Tribunal should have considered whether there was a sufficiently close, or direct, nexus between her protected beliefs and her Facebook posts. Finding that the Tribunal had also failed to carry out a proportionality assessment of the School’s actions against Mrs Higgs’ rights to freedom of belief and freedom of expression, the case was remitted the case to the Tribunal for further consideration.
• Mrs Higgs appealed on the basis that there was no need to remit the case and that on the findings of fact her claim should succeed.

The Court of Appeal allowed her appeal, finding that:

• Mrs Higgs’ dismissal was an act of direct discrimination and unfair.
• Where a dismissal is motivated by the objectionable way in which a belief is expressed, an employer can only lawfully dismiss where it can show that the dismissal was an objectively proportionate response;
• Whilst the school was entitled to object to the posts because of the offensive language towards gay and trans people, and the context of sex education in schools was relevant to the employee’s work, its decision to dismiss was “unquestionably a disproportionate response”. However, even where the risk of reputational damage is shown, an employer’s interference with an employee’s right to express their beliefs must still be proportionate. The proportionality of its interference will depend on whether the views are expressed on matters central to its business, the way in which the beliefs are expressed and whether the views could be imputed to the employer.
• The general legal position is that it is unfair to dismiss an individual solely for holding a religious belief that an employer may disagree with. However, if the way these views are expressed has the potential to harm others, dismissal can be a proportionate response. However, the risk of widespread circulation and reputational damage to the school was speculative, given that the posts were on Mrs Higgs’ private Facebook page, with no reference to the school.
• In considering whether the school’s response could be objectively justified, the employee’s statements had to be judged by what she actually said. Whilst the content of the posts may be objectionable, it was not “grossly offensive”. Further, the language was not Mrs Higgs’ own, as she mainly shared and quoted from other sources when expressing her views on her private Facebook account. At no point during her employment had she expressed her opinions or discriminated against any pupils as result. As a result, the School’s decision to dismiss the Claimant was unfair and disproportionate, as neither the language used nor the potential reputational damage were significant enough to justify such an action.

The takeaways for employers when addressing social media posts which may be deemed offensive are that any response must be proportionate and capable of objective justification, and that the right to express religious or other beliefs is fundamental. Relevant considerations for employers could include where the employee expresses their views, what the realistic prospect of reputational harm might be, and whether an employer could handle the situation another way without dismissing the employee in the first instance.

Age Discrimination

In Scott v Walker Morris LLP:

• The Claimant was an equity partner at a law firm.
• Under the firm’s retirement policy, any partner who wished to continue working beyond 60 could apply to extend their membership period until the age of 63 in reliance on “exceptional contribution” and, at 63, they could apply again to remain until age 65.
• The Claimant successfully applied to extend his membership for three years. However, his subsequent application to extend his membership for a further two years was unsuccessful.
• He claimed direct age discrimination.
• The firm admitted that their refusal to accept the Claimant’s application resulted in less favourable treatment based on age but argued it was justified as a proportionate means of:
  • achieving the legitimate aims of protecting the interests of its business; and
  • ensuring inter-generational fairness.

The Employment Tribunal upheld the complaint for direct age discrimination, concluding that:

• The firm had legitimate aims in maintaining a collegiate and cohesive atmosphere amongst its partner group by avoiding difficult and potentially degrading performance management of older partners, and workforce and succession planning to ensure it had sufficient partners to run its business profitably.
• However, the firm’s treatment of the Claimant was not an appropriate and reasonably necessary way of achieving those aims.
• There was no cogent evidence to suggest that the Claimant was underperforming. This was particularly compelling as the firm had an annual process for assessing and addressing partner performance.
• Similarly, there was no evidence before the Employment Tribunal to suggest that the firm’s retirement policies actually helped with workforce and succession planning – there were no difficulties in recruiting, promoting or retaining young / junior employees or that employees or junior partners were leaving because of the lack of opportunity to progress.
• The firm held discriminatory assumptions toward older partners, unsupported by the evidence.
• The firm failed to consider alternative, less discriminatory solutions that could have been implemented. It could as an alternative have adopted other actions, such as allowing partners to work until they were older whilst incentivising early retirement, and ‘moderated late retirement’ with partners losing 10% of their equity for each year they remained a partner over a certain age.

Unfair dismissal and re-engagement

In British Council v Sellers:

• The Council was the UK’s international organisation for cultural relations and educational opportunities.
• The employee had been employed since 1990, and in 2014 he was made the Italian country director, the most senior role in that country.
• The employee was accused of inappropriate conduct with a British Embassy employee at a social gathering he and his wife hosted in 2018 and following an investigation, he was dismissed for gross misconduct.
• The Employment Tribunal upheld his unfair dismissal claim, finding that the investigation had been flawed and key evidence overlooked. The tribunal found that the Council had failed to consider the full context of the situation.
• Before the remedy hearing, the Council commissioned a fresh, external independent investigation, which concluded that the employee was guilty of what had been alleged.
• At the remedy hearing, although the Council argued that serious concerns about the employee’s conduct made re-engagement impractical, the Tribunal reassessed the misconduct allegation, found that the alleged assault had not occurred and ordered re-engagement.

The Council’s appeal was successful, with the Employment Appeal Tribunal (EAT) setting aside the re-engagement order.

• The Tribunal had made an error when ordering the re-engagement of the employee.
• Instead of judging the reasonableness of the independent investigation, the real issue for the Tribunal was whether re-engagement was likely to be practicable in view of the Council’s stated belief that the employee had misconducted himself such that he could no longer be trusted in its employment.
• The Tribunal had wrongly found that it was irrational for the employer to hold that belief based on the report of an independent external investigator.
• The Tribunal had to consider the position from the perspective of the employer, whether it held a genuine and rational belief that the employee had engaged in conduct which had broken the relationship of trust and confidence.
• The focus of the Tribunal’s enquiry had to be on whether the employee’s re-employment was likely to work, something that would not be possible if the Council genuinely believed, on rational grounds, that it could no longer trust the employee.

This appeal highlights the practical difficulties with re-engagement and reinstatement orders and illustrates that Tribunals must assess practicability from the employer’s perspective.

Neonatal Care Leave and Pay

The new provisions relating to Neonatal Care Leave and Pay will apply to employees with babies born on or after 6 April 2025 and who require specialist neonatal care within 28 days of birth. We have produced a Neonatal Care and Leave policy, which is now available on the HR Protect portal for HR Protect client. For further information on becoming an HR Protect client please contact [insert].

Updates to the Employment Rights Bill

There have been a number of updates to the Employment Rights Bill this month. Make sure you stay up to date by reading our updated FAQs.