In these days of fevered and angry social media comment on almost everything, it is always wise for HR to keep its feet anchored firmly on the ground when all that online bile and indignation washes up at the employer’s door. Here to help with that is this week’s Court of Appeal decision in Higgs – v – Farmors School & Others, a case bulging at the seams with KCs (five!) and abstruse legal analysis.

In brief, Ms Higgs worked as an administrator for the School. She was dismissed after expressing on Facebook what a member of the public described as “homophobic and prejudiced views” concerning purported government policy on teaching same-sex relationships and gender identification matters in schools. Farmors was concerned that readers of the posts would conclude that Higgs held homophobic and transphobic views incompatible with her role there, and that this would put its reputation at risk. However, it did not suggest that Higgs had in fact ever brought those views into her work or had allowed them to affect her treatment of any of her colleagues or pupils.

The views which led to Higgs’ posts – a lack of belief in gender fluidity or that someone can change their biological sex, an Old Testament assertion that “divinely-instituted” marriage could be between opposite sexes only and a perceived duty, when unbiblical ideas or ideologies were promoted, to “witness to the world” her own views of “biblical truth – were accepted at the outset as protected under the Equality Act. Not everyone’s cup of tea, perhaps, but that did not mean that they were unworthy of respect in a democratic society.

Once that was accepted, the Court of Appeal had to consider the law around the manifestation of such beliefs. Article 9.1 of the European Convention on Human Rights grants an absolute right to freedom of thought and religion, while 9.2 limits one’s ability to manifest those beliefs by reference to any restrictions necessary in a democratic society for the protection of the rights and freedoms of others. Article 10.1 confers a right to freedom of expression, but then qualifies it in terms very similar to 9.2.

Paraphrased, therefore, Higgs had a right to hold her beliefs, no question, but only to manifest them to the extent that they did not infringe the rights and freedoms of others. In that regard, the Court noted that this was a high bar, and that those rights and freedoms would not be infringed by expressions of opinion which merely disturb, shock or offend. “Free speech“, said the Court, “includes … the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative … freedom only to speak inoffensively is not worth having“.

Of course, free speech is not an employment law concept, whatever your more self-important employees may suggest. Your staff do not have an unfettered right to disturb, shock or offend each other. How should employers apply those principles to online statements which flirt with the Equality Act protections and so risk internal discord with other employees or harm to the reputation of the business? The Court of Appeal said that a balancing act is required to ensure that the restrictions or sanctions which employers impose (here, dismissal) are proportionate to the harm done or likely to be done by those statements. It noted a number of considerations as of particular relevance to that question, as below, but stressed that each case of course depends on its own facts:

1. Is the company’s unhappiness about the views themselves or the way in which they were expressed? A bold but neutrally-toned statement that this is what I believe is very different from a post crammed with gratuitously offensive hyperbole, spite, insult, incitement to violence or other “egregiously offensive language“. The Court of Appeal drew a distinction (perhaps easier in law than in fact) between that on the one hand and Higgs’ mere “derogatory sneers” and “stupidly rhetorical exaggeration” on the other. The more offensive the manner of the expression of the views (as distinct from the views themselves), the more easily an employer might justify action.
2. Substantial parts of Higgs’ posts were actually lifted from online comments by others. The Court said that this “does not absolve her of responsibility”, but at the same time that it was still “relevant to the degree of any culpability“. Not for me to say, and greatest of respect and all that, but I disagree. If as an adult you expressly reproduce someone else’s words, top-and-tail them with your own asterisked calls to action, admit in your disciplinary meeting that you meant to give them wider circulation, and decline to take them down when asked, you must surely be treated as if you wrote them. It cannot be correct that you are less culpable for publishing your views in someone else’s offensive words than in your own.
3. What do the offending words actually mean? The School concluded that readers of the posts might infer homophobic or transphobic views on Higgs’ part, but if we take refuge in semantics, the posts did not strictly say that. “It is necessary to judge an employee’s statements by what they actually say (including any necessary implications) rather than by what some readers might choose illegitimately to read into them“, said the Court, alternatively phrased as “What message would they convey to a reasonable reader?” In principle this has to be right, but the practical consequences are both highlighted and disregarded in the same paragraph of the decision. The Court goes on: “this is particularly important in the current social media climate where messages are often read hastily and sometimes by people who are partisan or even ill-intentioned or … simply succumb to the common human tendency to find in a communication what they expect to find rather than what is actually there“. By extension, that makes it OK if your company risks social media flak, cancelation, press persecution, reputational crucifixion, etc., so long as it is at the hands of people whose opinions are not objectively well founded because they are over-sensitive and under-informed. So when the Court of Popular Opinion despatches the torches-and-pitchforks brigade to your offices, you can just give them a decent lecture on reading their social media feeds more carefully next time, and all will be fine. Really?
4. Has any reputational or other harm actually been done? We all tend to be a little self-centred around the newsworthiness of our own businesses, but if the hurtful reality is that no one has been the least bit interested in the post or connected it to your company by some weeks later, the transient nature of social media comments must reduce the risk very substantially. Here the School could point to one person only who had complained, but not to any reputational, let alone actual, harm to it.
5. Did the post relate to the employee’s work, not just in the sense of the employer being identifiable in it, but also in terms of its subject matter? Higgs worked in a school and was complaining in fairly hysterical terms about government education policy, so there was obviously a link. If she had been expressing views on immigration or the conflict in the Middle East instead, the risk of reputational harm to the School would be much harder to establish.
6. Does the employee show remorse or understanding of the harm which the posts might do, so as to provide some reassurance to the employer that they won’t be repeated? Higgs didn’t, confirming expressly at her disciplinary meeting that she would do pretty much exactly the same again next time.
7. Is there any argument that the employee’s posts are anything more than their personal view, i.e. in some way representative of the business? That might be a function of their seniority or the use of their job title in the posts, for example.

Weighing up these main factors, the Court of Appeal decided that the School’s decision to dismiss had not been proportionate and therefore that Higgs had been discriminated against on the grounds of her beliefs. While Higgs had not scored well under a number of those factors, the fact remained that there had been no harm done and by the time of the dismissal there was no real reason to think it would be. The Court said in terms that “an employer does not have carte blanche to interfere with an employee’s right to express their beliefs simply because third parties find those beliefs offensive and think the worse of it for employing them“, but as soon as consequential harm is done, that position changes. 

Despite first appearances, this case lays down no principle at all that you can’t be dismissed for saying stupid things on social media, provided that the sanction is proportionate to the damage caused or reasonably likely to be caused. Similarly, it does not mean that it is acceptable as a matter of employment law to disturb, offend or shock your colleagues online, particularly in the face of a policy and/or warnings to the contrary. I think that Ms Higgs can regard herself as much blessed here that almost no-one was sufficiently interested in what she wrote to react to it. If Farmors had received any material amount of heat as a result, her poor showing under those factors could well have tipped that balance the other way.