Back in February of this year, a significant legal decision was taken relating to employees expressing controversial views. For employers, it’s an important one to be aware of.
What was the case about?
Ms Higgs was employed at a school as its pastoral administrator and work experience manager. She had put two posts onto Facebook that were critical about the introduction of LGBTQ and relationship education in schools. The posts were made using her private social media account. But they were seen by a school parent who complained to the school.
The school investigated and ultimately made the decision to dismiss Higgs. They believed that the posts were offensive, inappropriate, could be perceived as discriminatory and could bring the school’s reputation into disrepute.
Higgs submitted an employment tribunal claim for discrimination and harassment. She argued her dismissal was due to her religious beliefs and the fact that she didn’t believe in gender fluidity or that someone could change their biological sex. Therefore, she said, those beliefs should have been protected under the Equality Act 2010.
What happened at the employment tribunal?
The employment tribunal dismissed Higgs’ claims of discrimination and harassment. It did find that her beliefs were protected under the Equality Act 2010. But it ruled that the dismissal was due to the way those beliefs had been manifested through the language used in the social media posts, not the fact she held those beliefs. Therefore, it found there was no discrimination or harassment.
The case then went to the Employment Appeal Tribunal (EAT). It found that the employment tribunal hadn’t considered whether the dismissal was a proportionate response to the way her beliefs had been expressed. This is a requirement by the European Convention on Human Rights. As a result, the EAT required the case to be reconsidered, with an emphasis on balancing the school’s concerns with Higgs’ rights to freedom of expression and religion.
The employment tribunal’s decision was overturned by the Court of Appeal
The Court of Appeal ruled that the school’s dismissal of Higgs was disproportionate and unlawful direct discrimination. It acknowledged the language in the social media posts had been provocative. But it found that it wasn’t grossly offensive, nor was it targeted at individuals. There was no evidence that the posts aimed to incite hatred towards the LGBTQ community. Nor was there evidence that the school’s reputation had been damaged, or that these views made Higgs unfit to do her job.
So where does this leave employers?
On first reading this ruling might understandably feel confusing. On one hand, general developments in legislation seem to be putting more of an onus on employers to take a proactive stance towards preventing and responding firmly to discriminatory acts by its employees.
But what this ruling confirms is that employees’ rights are protected when it comes to expressing or manifesting their beliefs – even when those beliefs are controversial. There is a right to freedom of speech.
Employers do have the right to encourage inclusivity and to expect employees to demonstrate respect towards them and each other. But if they require employees to restrict their expression of beliefs it must be in a proportionate way. There are limits to an employer’s right to get involved where protected views are expressed. There’s no right not to be offended, and freedom of speech does mean that some opinions might be expressed that shock or offend others. That doesn’t mean however that employees can say pretty much anything they like in every circumstance though. There’s undoubtedly a delicate balancing act here.
What should you bear in mind if faced with a similar situation?
There’s no avoiding the fact that employees are likely to continue expressing views and sharing opinions on social media platforms! So what should you keep in mind if you find yourself in a situation where an employee says something on social media that’s potentially controversial?
Avoid a knee-jerk reaction
Every incident will be different so don’t jump to conclusions straight away. Consider the context carefully. Were the comments made publicly or privately? In work or outside of it? Were they targeting someone? Has this kind of behaviour been an issue before? Does holding these views affect their ability to do their job or have they demonstrated through their everyday work that they can do what’s required in the role?
Remember the need to retain a sense of proportionality and don’t rush towards the most severe sanctions. Keep in mind that just because an employee has expressed protected views that other people might find uncomfortable doesn’t mean you can be certain they’d discriminate on those grounds towards others. Don’t make assumptions and draw what could be incorrect conclusions that wouldn’t stand up in a tribunal.
Don’t assume the comments have caused reputational harm
Don’t make assumptions about possible reputational damage. Look very carefully at the facts instead to avoid any misinterpretation. Has the employee distinguished their personal views from your views as an employer? What have they actually said? What kind of language has been used and what is the overall tone?
Employees can’t assume ‘anything goes’, even on a personal social media account. But be cautious when using potential damage to your organisation’s reputation as a reason for more severe disciplinary action if there isn’t evidence that it’s caused any.
Are there any steps you can take now to reduce risks?
It’s worth reviewing and updating your policies and procedures to give employees clarity about what’s acceptable when posting online. Highlight your business’s responsibilities when it comes to protecting employees from discrimination and the need to protect your reputation too. But also keep in mind their right to freedom of expression and make sure that’s referenced.
Consider providing some training to managers and employees, so they clearly understand the policies and procedures. Acknowledge that some people may wish to express their protected beliefs, but that it must be balanced against the requirement not to discriminate and to not let those beliefs affect how they carry out their role.
Do you need support with striking the right balance?
If so, talk to us for professional HR advice. We can support you with updating policies and procedures and provide specific guidance if a situation arises where you’re concerned about how to respond to an employee’s comments on social media.
