On 12 February 2025, the Court of Appeal handed down its highly-anticipated judgment in Higgs v Farmor’s School.
The law has been clear for some time that an employer's actions against an employee who has manifested a protected belief will not amount to direct discrimination if the reason for the employer's action was not the belief itself but the inappropriate manner in which the employee manifested it. This case goes one step further to stress that the question of whether the behaviour is clearly inappropriate must be determined objectively and any disciplinary action must be proportionate.
Background
This case engages both the Equality Act and the European Convention on Human Rights (ECHR), as our courts are bound to interpret the Equality Act in the light of the provisions of the ECHR. Under the ECHR, individuals have the right to freedom of religion and belief, and the right to freedom of expression. This means that individuals have the right to hold a belief and to manifest, or express, their belief to others, even where others may find those beliefs offensive. These rights are qualified: they can be limited by law, to meet a legitimate aim, and where it is necessary to limit them in a democratic society.
The Facts
Mrs Higgs is a Christian who worked as a pastoral administrator and work experience manager at Farmor's School. Her case was not that she had been discriminated against because she is a Christian but because of her beliefs about gender, same sex marriage and Biblical truth.
A parent complained to the school about a post on Mrs Higgs' personal Facebook page. The post concerned relationship education in primary schools which, the parent said, demonstrated that Mrs Higgs held homophobic and prejudiced views against the LGBTQ+ community. Mrs Higgs had reposted someone else's post about the teaching in schools on same-sex relationships, same-sex marriage and gender being a matter of choice. Mrs Higgs added the words "PLEASE READ THIS! THEY ARE BRAINWASHING OUR CHILDREN!" and exhorted readers to "Please sign this petition, they have already started to brainwash our innocent wonderfully created children and it's happening in our local primary school now". Her posts did not mention Farmor's School, which is a secondary school.
Ms Higgs was suspended and later dismissed for gross misconduct. The school said that she had breached its code of conduct which prohibited unlawful discrimination. The school found that, as a result of the Facebook posts (including their "inflammatory and quite extreme" language") the parent complaining had taken offence, which was "clear evidence of discrimination…in the form of harassment" and that there was a potential risk of harm to the school's reputation.
Mrs Higgs brought a claim in the employment tribunal for direct discrimination and harassment on the grounds of religion or belief. The tribunal agreed that her beliefs (including the lack of belief that gender can be fluid and the lack of belief that an individual can change their biological sex or gender) were protected by discrimination legislation. The tribunal also held that Mrs Higgs had no real expectation of privacy in relation to her Facebook posts and that the school had been entitled to take action in relation to them, on the basis that “anyone posting on such a platform as Facebook effectively loses control of their posts, at least when a large number of people can access them”. The tribunal considered that Mrs Higgs had not been discriminated against because of her protected beliefs. The tribunal found that Mrs Higgs had been disciplined and dismissed because of the nature of her Facebook posts which went much further than those beliefs, and because of the school's concerns that someone reading her posts could reasonably assume that she held homophobic and transphobic views (an accusation which she denied).
Mrs Higgs appealed to the Employment Appeal tribunal (EAT), which upheld her appeal. The EAT held that the tribunal had not properly engaged with the question of whether the school's action was because of, or related to, the manifestation of Mrs Higgs' beliefs. If the tribunal had determined that the posts were to be viewed as a manifestation of her beliefs, it had then to ask whether the schools' treatment was because of, or related to, the manifestation of her beliefs or because she had manifested her beliefs in an unjustifiably objectionable way. In answering this question, it should have carried out a proportionality assessment and been satisfied that the employer's actions were prescribed by law. The EAT found that the tribunal had not carried out a proportionality assessment, and the case was remitted to the employment tribunal to do so.
The Court of Appeal judgment
Although Mrs Higgs had to an extent succeeded in her appeal at the EAT level, she believed that the EAT should have gone further and held that her claim succeeded rather than remit it to the tribunal to reconsider. She appealed to the Court of Appeal (CA) on that basis and the CA allowed her appeal, finding that her dismissal was unlawfully discriminatory.
The reasoning of the CA was:
- It agreed with the lower courts that Mrs Higgs' beliefs (that gender is binary and that same-sex marriage cannot be equated with marriage between a man and a woman) are protected by the Equality Act.
- The dismissal of an employee merely because they have expressed a religious or other protected belief to which the employer (or a third party with whom it wishes to protect its reputation) objects will constitute unlawful direct discrimination within the meaning of the Equality Act.
- However, if the dismissal is motivated not simply by the expression of the belief itself (or third parties’ reaction to it) but by something objectionable in the way in which it was expressed, then the dismissal will be lawful if, but only if, the employer shows that the dismissal was a proportionate response to the objectionable expression – in short, that it was objectively justified. When determining whether a belief is expressed in an objectionable way, this must be determined objectively rather than from the employer's subjective viewpoint.
- The school sought to justify Mrs Higgs' dismissal on the basis that the posts in question were intemperately expressed and included insulting references to the promoters of gender fluidity and the LGBTQ+ community which were liable to damage the school’s reputation in the community, relying on the fact that the posts had been reported by one parent and might be seen by others.
- However, the dismissal was not a proportionate response. Neither the language of the posts nor the risk of reputational damage were capable of justifying Mrs Higgs' dismissal in circumstances where she had not said anything of the kind at work or displayed any discriminatory attitudes in her treatment of pupils.
- The CA reasoned that even after the complaint the school received about the Facebook posts, no reputational damage had occurred or was likely to occur. The CA factored in that the posts were limited to only Mrs Higgs' Facebook friends, and that the account was in her maiden name. Moreover, it found that, even if the public was aware of the posts, it was clear that the views were those of Mrs Higgs, and not the school.
- Accordingly, Mrs Higgs' dismissal was not objectively justified and therefore it constituted unlawful discrimination.
- Whilst not part of the CA's overall rationale, the judgment quotes with approval an extract from a written submission by the Equality and Human Rights Commission which warned that someone who expresses beliefs similar to those held by Mrs Higgs may be unfairly stereotyped as having an 'animus' towards the LGBTQ+ community which they do not in fact possess. Detrimental treatment of someone that is motivated by stereotypical assumptions about them based on their protected beliefs would amount to direct discrimination.
What does this mean for employers?
Employers face difficult decisions when balancing the rights of employees who express protected beliefs which clash with other protected beliefs. The crux of this decision is that where an employer wishes to discipline or dismiss an employee for how they express a religious or philosophical belief, they must consider objectively whether the behaviour is clearly inappropriate and any disciplinary action must be proportionate.
In similar circumstances, key factors will be whether the expression of the belief took place outside of work, whether the social media posts or other expression could be linked to the employer, and whether any reputational damage has occurred or is likely to occur. Care should also be taken to avoid making stereotypical assumptions about someone based on the beliefs they hold.
This case underlines the importance for employers in pausing and taking a measured response when dealing with conflicting beliefs, which often create heated debate. Setting clear rules for workplace behaviours will also be key in ensuring disagreements do not give rise to successful discrimination claims.
