A CHRISTIAN employee who was dismissed by a school in 2019 because of her social-media posts on issues of gender and sexuality has been given permission to appeal against the judgment.
In an unusual move, the ruling from an Employment Appeals Tribunal in London last Friday was based on an intervention by the Archbishops’ Council that pointed to the Church of England’s “Pastoral Principles” on “disagreeing well” (Comment, 6 November 2020; News, 5 May 2021).
Kristie Higgs, aged 46, was suspended and later dismissed from her job as a pastoral administrator and work-experience manager at Farmor’s School, Fairford, in Gloucestershire, over two Facebook posts that she had shared with about 100 friends in October 2018.
In one post, she forwarded an article on the alleged rise of transgender ideology in children’s books in schools in the United States, to which she commented: “They are brainwashing our children.” In the second post, she forwarded an article on gender fluidity, which described it as a “perverted vision”. Copies of the posts were sent anonymously to the school head teacher.
In 2020, an employment tribunal rejected her argument that she had been unlawfully discriminated against on the grounds of religion (News, 30 October 2020).
Handing down her judgment last Friday, Mrs Justice Eady said that she agreed with substantial parts of the original employment tribunal decision. It had not made the mistake of finding that the school “was entitled to limit the expression of the claimant’s [Ms Higgs’s] beliefs to the way they had been characterised in the pleadings”. Nor was it “perverse” for the tribunal to find that the language used in Ms Higgs’s posts “florid and provocative”.
She did, however, agree with Ms Higgs that the tribunal had “failed to engage with the nature” of her rights, “which included the right to hold and to express views on controversial matters of public interest”.
This freedom of expression or belief was not without restriction or limitation, however, she said.
In her ruling, she had considered a submission from the Archbishops’ Council, which pointed to recent guidance — the Pastoral Principles — created to “help its members engage in difficult discussions, including the manner in which a strongly held conviction is expressed; seeking to create space for difference, the C of E considers people should be free to express their views in an environment of mutual respect and tolerance.”
The Archbishops’ Council said in its submission that a “strict proportionality assessment” was required in the case “to encourage pluralism, tolerance and dialogue”. Content, tone, understanding of the audience, and the potential intrusion of others’ rights, context, and the nature of the person’s position must all be considered when expressing views, the Council said.
Sending the case back for a fresh tribunal, Mrs Justice Eady advised the new tribunal to apply this proportionality assessment proposed by the Council.
In her concluding remarks, she warned: “I consider that a danger can arise from any attempt to lay down general guidelines in cases such as this. Experience suggests that issues arising from the exercise of rights to freedom of religion and belief, and to freedom of expression, are invariably fact-specific.
“Although the public debate around these issues tends to be conducted through the prism of categories and labels, that is not an approach that can properly inform the decisions taken in individual cases. The values that underpin the right to freedom of religion and belief and of freedom of expression — pluralism, tolerance, and broadmindedness — require nuanced decision-making; there is no ‘one size fits all’ approach.”
Explaining the intervention of the Archbishops’ Council, the director of faith and public life, the Revd Dr Malcolm Brown, writes in an article on the Church Times website: “Over many years, cases which pitch Christians with particular views against people who find those views offensive have been fought between binary positions with little nuance. On the one hand, the representatives of Christians claiming to have been discriminated against argued that the freedom to express their beliefs in public was absolute, whoever it offended.”
A “chill-factor” was leading employers to view any expression of religious belief as potentially problematic, he said, while “senior contacts in the legal profession told us of a judiciary increasingly frustrated with the way these cases were being argued in the courts, with the aggressive voices beginning to be seen as typically Christian”.
Because of this, and the “profound internal disagreements” within the Church on human identity and sexuality, the Archbishops’ Council, “intervening in Mrs Higgs’s case, developed a Proportionality Assessment which would allow tribunals to assess not only the facts of what someone had said but how it had been said: the context, the manner, the relationship to the hearers and so on. We offered this Proportionality Assessment to assist the tribunals and with complete neutrality as between Mrs Higgs and the school.”
This had evolved from “the Pastoral Principles setting out parameters for ‘good disagreement’, showing respect for difference, alertness to the dynamics of power and the need to nurture trust”.
Dr Brown explained: “In upholding Mrs Higgs’s appeal and remitting her case to be heard again, she explicitly advised the new tribunal to apply the Proportionality Assessment which the Church had proposed. That assessment thus becomes the test against which cases of this kind will be judged in future — not as a conflict between absolute rights but weighing the facts with the impact of the words counting as much as their content.
“And so the Church of England has helped establish that Christians stand for a tolerant and plural society, not just their own religious freedoms.”
He concluded: “We hope that the lazy assumption that religious belief is only truly authentic when it is strident and ‘in your face’, may have been laid to rest.”
Leader comment: When the Pastoral Principles are applied in court