Employment lawyers and other experts react to today’s landmark ruling in Higgs V Farmor’s School and discuss the implications of the decision for HR and employers.
Robert Lewis, partner, Mishcon de Reya
This is an important decision that has profound implications on how employers and educational institutions should handle situations in which employees express personal opinions, which could be offensive to other people.
The Court of Appeal confirmed that disciplinary actions could be discriminatory, unless employers can justify and prove that they are proportionate. This can happen in many different situations, including when employees express themselves about matters such as sexual orientation, gender identification, or political issues. If such a situation arises, employers and educational institutions need to seek legal advice early.
“I’m concerned about the impact this ruling may have on vulnerable minorities, as employees might feel that they can express offensive opinions without fear of employers taking action. It is still important for employers to prevent unlawful harassment and discrimination against their employees.
The judgment will have an impact on other cases that are currently being heard in the courts, including the David Miller case v University of Bristol.
Monica Kurnatowska, employment partner, Baker McKenzie
Employers who are dealing with complaints regarding an employee’s expression of beliefs will welcome the Court of Appeal’s endorsement of practical guidance provided by the EAT.
This is a difficult area for employers to navigate, as they must strike a balance between employee freedoms and the rights of others. But this ruling provides a framework that can help them achieve that goal.
Employers should remember that there is no such thing as a right to not be offended. They must also consider context when deciding whether something is offensive.
Sex Matters Statement, who intervened in this case
Employers who receive complaints regarding personal posts on social media about controversial topics should consider this judgement as a warning to think twice before acting.
They should not assume that just because someone says “I’m offended”, they have been violated in their human rights.
Joanne Moseley, senior associate solicitor, Irwin Mitchell
This is a landmark judgment that gives authoritative guidance as to how the law protects expressions of religious and philosophical views in the workplace.
Employees have the right to express their opinions on controversial issues of public concern, even if they offend or shock others, or if those opinions don’t align themselves with their employer’s EDI value.
“Employers will often justify the dismissal of employees by claiming, as in this case, their behavior could have damaged their reputation. This decision shows that employers must carefully consider the words used by the employee, their language and how it may affect their ability to perform their job. The threshold is high for speech to be considered objectionable.”
Kristie Higgs’ Facebook post. Image: Christian Concern
Alex Mizzi is the legal director at Howard Kennedy
The judgment simplifies the laws but it will make it more difficult for employers to dismiss workers who express controversial opinions via social media. The court stressed that there was a distinction between ‘objectionable language’ and ‘grossly offending’ language. The former is less likely to be grounds for dismissal.
The case shows that in cases where there is little evidence of impact on an employee’s job and the risk of damage to reputation is speculative and dismissal is not deemed proportionate, it is more likely to be unfair dismissal. The Employment Rights Bill will remove the two-year qualification period for these claims, which will make employers’ dilemmas even more complex.
Eugenie Freeman, senior associate, Kingsley Napley
This landmark case establishes a precedent on how employers should react in situations when they must balance competing rights to freedom of expression with protection against discrimination. It is evident from the judgment that it’s okay to express potentially offensive views, as long as they aren’t expressed in a way that is objectively objectionable.
This judgment provides guidance for employers on how to handle such situations. It is important to avoid a knee-jerk reaction when dealing with complaints and keep in mind the proportionality principle.
These cases are fact-specific, and actions that might be appropriate and proportionate one time may not be the same in another. It is also important for employers to set out clear guidelines and policies that outline their expectations of staff when they publicly express views on controversial and sensitive topics. This is especially true if the employee will be identifiable as a member of the organization.
Subscribe to our weekly HR news and guidance
Every Wednesday, receive the Personnel Today Direct newsletter.
