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Conflicting Protected Characteristics

Is a belief that gender cannot be fluid capable of protection as a protected characteristic of “belief” under the Equality Act 2010?

If so, how does that reconcile with protection afforded to those who have counter beliefs or are protected under the gender reassignment protected characteristic?

Mrs Higgs was employed as a pastoral administrator and work experience manager at Farmor’s School. Mrs Higgs is a Christian. The school received a complaint from a parent about Mrs Higgs who they claimed had posted homophobic and prejudiced views against the LGBT community on Facebook. Mrs Higgs reposted a piece relating to the teaching of same sex relationships, marriages and gender being a matter of choice with the caption “Please read this! They are brainwashing our children!”.

The school asked the complainant to submit a screenshot of this post and any other similar postings by Mrs Higgs. They received other posts by Mrs Higgs describing gender fluidity as a ‘perverted vision’. A meeting was held, and Mrs Higgs was asked to confirm whether the comments were hers. She confirmed that they were. Mrs Higgs was suspended pending an investigation.

Mrs Higgs was invited to a disciplinary hearing and was dismissed for gross misconduct. The School set out that Mrs Higgs’ Facebook posts could reasonably lead someone to believe that she held prejudiced views, and this could offend pupils, parents and the wider community.  Mrs Higgs appealed against the decision and this was rejected.

Mrs Higgs brought claims against the School for discrimination and harassment. She argued that her dismissal breached her freedom of speech and that she had been subject to direct discrimination and harassment, relying on her religion and lack of belief in matters relating to gender fluidity and same-sex marriage as protected characteristics.

Decision

The Tribunal held that Mrs Higgs had not been dismissed for her beliefs but how she expressed them. She was therefore not directly discriminated against or harassed because of her beliefs.

The tribunal did conclude that a belief that gender cannot be fluid and that an individual cannot change his or her biological sex or gender should be respected and could be a protected belief under the Equality Act 2010. Others may hold counter views which are also worthy of protection. The Tribunal acknowledged that the views of each side in such debates will often be offensive to the other but it doesn’t mean that either should be deprived of protection

The Tribunal considered that it was necessary to consider present day societal views and what is acceptable, commenting that “What is acceptable today might well be regarded as morally repugnant at some point in the future, but it was not our job to anticipate such a change.”

Comment

In this case the employment Tribunal found that the Claimant’s religion/beliefs were not the reason for her disciplinary and dismissal – it was the school’s conclusion that her actions damaged hers and the school’s reputation with pupils, staff and parents.

This case is a further example of an employer being able to take action against an employee who expressed their views on social media platforms in a way which has (or could) damage the employer’s reputation but confirms that the Equality Act will extend to protect beliefs which could cause offense.

If you have any queries, please contact our employment team on 01228 552600 or 01524 548494.

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