In Higgs v Farmor's School ET/1401264/19, an employment tribunal has held that a Christian employee's beliefs that gender cannot be fluid and that an individual cannot change their biological sex or gender were worthy of respect in a democratic society and could therefore be protected beliefs under the Equality Act 2010.
Mrs Higgs is a Christian and was employed as a pastoral administrator and work experience manager by Farmor's School. In the first of those roles, she was responsible for overseeing students who had been removed from a class for being disruptive.
The school's head teacher received an email from someone outside of the school making a complaint about Mrs Higgs. The complaint related to a Facebook post which the complainant considered demonstrated that Mrs Higgs held homophobic and prejudiced views against the LGBT community. The relevant post was a reposting of a piece written by another person to which she had added "Please read this! They are brainwashing our children!" and an exhortation to sign a petition. The post related to the teaching in schools of same-sex relationships, same-sex marriage and gender being a matter of choice.
The school's head teacher replied to the email asking the complainant to send him screenshots of any "similarly offensive posts" made by Mrs Higgs. As a result, he was sent a further example of Mrs Higgs' reposting of an article written by a third party which referred to gender fluidity as a "perverted vision" and that "the LGBT crowd with the assistance of the progressive school systems are destroying the minds of normal children by promoting mental illness". The complainant also expressed the view that Mrs Higgs seems to find "obnoxious" a category of person that would include several children in the school.
Following an investigation and disciplinary hearing, Mrs Higgs was dismissed for gross misconduct for breaching the school's conduct policy, including in relation to discrimination and serious inappropriate use of social media. Her internal appeal was unsuccessful.
Mrs Higgs claimed that she had been directly discriminated against and harassed on the ground of religion and that her following beliefs had resulted in her mistreatment:
In this case the tribunal sought to distinguish its decision from the earlier tribunal decisions in Forstater and Mackereth (although it was not bound by those decisions) by reasoning that in the earlier cases the claimant's beliefs could have resulted in their discriminating against members of the trans community. However, since on the evidence there were LGBT pupils in the school and Mrs Higgs had direct contact with pupils, it is difficult to see how such a distinction could properly be made.
It is understood that Mrs Higgs intends to appeal the decision. We also understand that both Forstater and Mackereth have been appealed to the EAT. It is therefore hoped that we will receive appellate guidance on this issue in the near future.
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