A second lay panel member has been recused from hearing an appeal made by a school worker who claims she was sacked because of her Christian beliefs because of apparent bias.
Kristie Higgs, 46, was dismissed for gross misconduct by Farmor’s School in Fairford, Gloucestershire, in 2019 after sharing Facebook posts criticising plans to teach LGBT relationships in primary schools.
Mrs Higgs, supported by the Christian Legal Centre, took the school to an employment tribunal, arguing she had been unlawfully discriminated against because of her Christian beliefs.
The school had denied dismissing the mother of two because of her religious beliefs and said she was sacked because of the language used in the posts.
In its ruling in 2020, the tribunal concluded her religion is a “protected characteristic” as defined by the Equality Act but the school lawfully dismissed her.
Mrs Higgs has appealed that judgment to the Employment Appeal Tribunal in London but the start was delayed after lawyers learned one of the lay panel members hearing the case had been a senior official with the National Education Union (NEU).
The NEU has supported the teaching of relationships, sex and health education in schools.
Andrew Morris is a former assistant general secretary of the union and was one of two lay panel members sitting alongside Mrs Justice Eady.
After hearing the application, Mrs Justice Eady said she was allowing Mr Morris to be recused.
“At the relevant time, the lay member was the member of an organisation and held senior office and the organisation campaigned on areas of debate identified in the claimant’s Facebook posts,” the judge said.
“Whether or not Mr Morris agreed or disagreed with all the pronouncements made by the NEU as assistant general secretary, he is inevitably associated with the views expressed which were very clearly on the opposite side of the debate to that of the claimant.
“Those weren’t merely the pronouncements of an organisation that was expressing a view on matters of current interest as many trade unions will do but of a very particular association that had on behalf of its members taken a very real interest in the issues in question and had taken on a campaigning role in that respect.
“In those circumstances, I take the view it’s difficult to see how Mr Morris as assistant general secretary could be publicly disassociated from those views.
“In those circumstances, whatever might in fact be Mr Morris’s personal position, the impartial observer so informed would be bound to conclude there remained a real possibility of unconscious bias.”
It is the second time a panel member has been recused from hearing Mrs Higgs’s appeal for apparent bias.
Edward Lord was recused last year because of apparent bias due to public statements they had made on LGBTQ+ rights.
The hearing is continuing with Mrs Justice Eady, as president of the Employment Appeal Tribunal, sitting alone.
Mrs Higgs, from Fairford, Gloucestershire, shared and commented on posts which raised concerns about relationship education at her son’s Church of England primary school.
Students were to learn about the No Outsiders In Our School programme, which is a series of books teaching the Equality Act in primary schools.
Mrs Higgs, who was posting on Facebook under her maiden name, shared two posts in October 2018 to around 100 friends.
One of the posts referred to “brainwashing our children” and added: “Children will be taught that all relationships are equally valid and ‘normal’, so that same sex marriage is exactly the same as traditional marriage, and gender is a matter of choice, not biology, so that it’s up to them what sex they are.
“We say again this is a vicious form of totalitarianism aimed at suppressing Christianity and removing it from the public arena.”
An anonymous complaint was made to the school and Mrs Higgs was suspended and, after a disciplinary hearing, dismissed for gross misconduct.
Richard O’Dair, representing Mrs Higgs, said in sharing the Facebook posts she was expressing her freedoms of speech and religion.
He told the hearing: “It is an uncontroversial, foundational principle of convention jurisprudence that freedom of speech on important matters is granted very broad latitude as to the modes of expression.
“That is the law. As the appellant tribunal, you will have to be confident that the employment tribunal understood that and took it into account.
“In my submission you cannot have that degree of confidence.
“There is a further point the tribunal should have taken account of but didn’t. That the offending language was not hers.
“She was forwarding, as a participant, in democratic debate language by others. There is no shred of awareness here that the tribunal was aware of such subtleties.
“The employment tribunal erred in law in concluding that a reasonable person might conclude the claimant was homophobic.
“Freedom of speech is under threat, and it is fighting hard. In my submission, it is also true and equally not more true that freedom of religion is under that existential threat.
“It should not be forgotten what the claimant did in this case was as an expression of her faith, and concern for the children, to seek to stimulate political debate.
“And where we are is an indication of not only freedom of speech, but freedom of religion, are under threat.”
After hearing all the submissions the judge has reserved judgment.