Education Law Speed Read – 13/11/17

Appeal bid refused in response to ruling that segregation policy is direct discrimination

In a recent speed read we covered the case of HMCI v The Interim Executive Board of Al-Hijrah School where the Court of Appeal overturned the decision of the High Court and found that the segregation policy of an Islamic faith school was direct sex discrimination.

Al-Hijrah School and Birmingham City Council did not seek permission to appeal the ruling in October; however the Association of Muslim Schools (AMS) did. The chair of the AMS argues that the ruling “may have created a conflict” between both its legal and religious responsibilities and that this conflict “compromises the association’s ability to fulfil what it understands are its purposes” and places other schools that segregate students at an “immediate risk of challenge”.

The Court of Appeal refused to let AMS be named as a respondent, interested party or intervenor in the case on a number of grounds, including the fact that the AMS did not apply to be an interested party or intervenor earlier, despite being aware of the proceedings and also on the basis that the school itself accepts the decision.

Al-Hijrah School did not back AMS’s decision to seek permission to appeal. The Court of Appeal said that the school is working on implementing the decision with Birmingham City Council.

The Court also said it would have refused permission to appeal even if the AMS’s application to become an interested party had been successful because an appeal would “have no real prospect of success”. The Court went on to say that an application to the Supreme Court “would itself foster uncertainty for an unpredictable period and with an uncertain outcome with implications for the council and the claimant school which accept and wish to implement our decision”.

Gibbons v British Council

In the case of Gibbons v British Council, the claimant brought claims of unfair dismissal, wrongful dismissal and belief discrimination following her dismissal after she made remarks on social media about Prince George which led to widespread media criticism and adverse public comment.

Facts

Ms Gibbons was head of global estates for the British Council. On Sunday 24 July 2016 whilst she was logged onto Facebook at home, she saw that some of her friends were engaged in a conversation about a meme (a photograph with a comment on it) of Prince George. Ms Gibbons subsequently contributed to the conversation with comments referring to Prince George as a symbol of “white privilege” and expressing her “socialist, atheist and republican opinions” saying she does not “believe the Royal Family have any place in a modern democracy, least of all when they live on public money.”. The Claimant stated that she had her Facebook privacy settings on their highest and in her understanding her comments were only visible to her Facebook friends.

The thread of the discussions came into the hands of the media leading to widespread criticism and adverse comments about both Ms Gibbons and the British Council.

The British Council asked Ms Gibbons to apologise to Kensington Palace, which she did; they also suspended her and instigated disciplinary action. Ms Gibbons was subsequently dismissed following an investigation. Her appeal against the dismissal was not upheld.

She thereafter brought claims of unfair dismissal, wrongful dismissal and belief discrimination in the Employment Tribunal.

Tribunal decision 

Ms Gibbons was unsuccessful in all of her claims.

Unfair Dismissal 
In considering the claim for unfair dismissal, the Tribunal considered that the British Council held a genuine belief that the claimant was guilty of misconduct in carelessly posting remarks associated with the obscene abuse of a child and that it was such association that caused the large scale hostile publicity.

Ms Gibbons criticised the British Council for reacting too quickly. Whilst the Tribunal did acknowledge that some reasonable employers would have considered a lesser disciplinary sanction to strike a balance between appeasing critics and Ms Gibbons’ lack of intention to do harm, it was acknowledged that there was enough evidence at the time of substantial damage to the organisation’s reputation and Ms Gibbons had also shown no sign of accepting responsibility. The Tribunal therefore found that it could not be said that the decision to dismiss was one that no reasonable employer would have made and whilst Ms Gibbons deserves some sympathy for her slip of judgment, that does not mean the decision was unfair.

Wrongful dismissal 
The Tribunal also held that whilst the publicity gained by Ms Gibbons’ posts was not deliberate, there was still gross misconduct and therefore she had not been wrongly dismissed.

Belief discrimination
Ms Gibbons’ philosophical belief is that the UK should not be a monarchy but a republic. The Tribunal found that this was a genuine belief against which its holders should be protected from discrimination.

Ms Gibbons brought claims of direct and indirect belief discrimination. Her claim for direct discrimination failed as the Tribunal found that it was not the expression of her republican belief that led to the British Council concluding that she lacked judgment but rather the fact she had associated herself with a distasteful and personal attack on a small child.

Her claim for indirect discrimination also failed. Whilst the Tribunal found there was a provision criterion or practice in place (not to express political views in a public forum where the person holding those views could be associated with the British Council) it held that if this did place Ms Gibbons and republicans at group disadvantage, it would be justified as being proportionate to a legitimate aim (being an employer’s desire to protect its reputation).

Comment

This case highlights the potential consequences of the use of social media by employees and the wider impact this can have on an employer’s reputation. Employers should have a clear social media policy to ensure employees are aware of what is acceptable when using social media both at work and outside of work.

If you have any queries on the above and how it will affect you, please do not hesitate to contact a member of our education team.