At a glance

• The Court of Appeal has handed down its decision in Higgs v Farmor’s School and has upheld Mrs Higgs’ appeal, finding that the employment tribunal would be bound to find that her dismissal constituted unlawful discrimination.
• This is the latest case in the arena of competing workplace rights, following the prominent judgments in the claims brought by Maya Forstater and David Mackereth, highlighting the difficulties employers can face in striking the delicate balance between conflicting opinions.
• This case underscores the importance of careful, context-specific assessments in cases involving the manifestation of beliefs.

Background

Mrs Higgs worked at Farmor’s school (School) as a pastoral assistant and work experience manager. It was common ground that she would work at times alongside pupils who had lesbian, gay, bisexual and/or transgender characteristics, or were questioning whether they did so. Mrs Higgs is a Christian who holds various gender critical beliefs, including the lack of belief in gender fluidity.

In 2018, the School’s headteacher received a complaint from a parent regarding a Facebook post Mrs Higgs had made.  Mrs Higgs’ post was entitled ‘Please read this! They are brainwashing our children’ and encouraged people to sign a petition. She had posted about the government consultation into making relationships education mandatory in primary schools and relationships and sex education mandatory in secondary schools, which, amongst other things, she said would mean that children would be ‘taught that all relationships are equally valid and ‘normal’, so that same sex marriage is exactly the same as traditional marriage, and that gender is a matter of choice, not biology, so that it’s up to them what sex they are’. The parent who complained expressed their concern about a member of staff who worked directly with children had been posting ‘homophobic and prejudiced views against the LGBT community’ and that she might ‘exert influence over vulnerable pupils’. On request, the parent forwarded on re-posts by Mrs Higgs of views expressed by others related to liberal schools in America ‘indoctrinating their children’ and ‘recruiting children for the transgender roster’.

After an investigation and disciplinary hearing, Mrs Higgs was summarily dismissed for gross misconduct. While no concerns had been raised regarding Mrs Higgs’ conduct in her roles within the School, she was found to have breached the code of conduct, on the basis that as a result of the Facebook posts (the language of which was ‘inflammatory and quite extreme’) the parent 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. While Mrs Higgs had expressed regret for using certain words in her posts, the posts were not consistent with her statement that she was tolerant of others. And Mrs Higgs relied on her rights to freedom of religion and of expression and speech, but these were not unfettered. Her argument of religious discrimination was also rejected.

Mrs Higgs brought claims of direct discrimination and harassment in the employment tribunal (ET). Mrs Higgs is a Christian but it was not her case that she had been directly discriminated against, or harassed, for her Christian views per se. Rather, she contended that she held  certain beliefs (or lack of beliefs) and had suffered direct discrimination or harassment as a result. These included a lack of belief in ‘gender fluidity’, that someone could change their biological sex/gender or in same sex marriage, and a belief in marriage as a divinely instituted life-long union between one man and one woman.

Outcome

The ET decision

The ET found that Mrs Higgs’ beliefs were protected under section 10 Equality Act, but it dismissed Mrs Higgs’ claims of direct discrimination and harassment. It found that readers of her post may reasonably conclude that she was homophobic and transphobic as her post contained ‘florid and provocative language’. The disciplinary proceedings and dismissal were motivated by the School’s concern that because of her posts Mrs Higgs would be perceived as holding unacceptable views in relation to gay and trans people, views which she denied holding. That action was not because of Mrs Higgs’ beliefs she held, but that because of the perception of her views.

Mrs Higgs appealed to the Employment Appeal Tribunal (EAT).

EAT outcome

The EAT upheld Mrs Higgs’ appeal and remitted the case back to the ET. It found that the ET had erred in law in failing to properly consider and engage with the nexus between Mrs Higgs’ Facebook posts and her protected religious beliefs. The ET had by-passed the balancing exercise necessary to consider whether the restriction of her rights was prescribed by law and necessary in pursuit of the protection of her rights. The ET had instead considered this through the School’s views of Mrs Higgs’ posts, which was irrelevant to the question at hand.

Mrs Higgs’ lawyers appealed and argued against the EAT’s decision to remit the case back to the ET on the basis that sending the case back to the same ET, which had already made the errors, would risk Mrs Higgs’ access to justice being denied.

The case has since been allowed to proceed on all grounds to the Court of Appeal.

“The EAT has set down ‘basic principles’ which will help employers when trying to balance conflicting freedoms or protected characteristics in the workplace.”

Court of Appeal outcome

The Court of Appeal upheld Mrs Higgs’ appeal, finding that the tribunal would be bound to find that her dismissal was not objectively justified and accordingly that it constituted unlawful discrimination.

The Court of Appeal considered that, even if the language of Mrs Higgs’ posts passed the threshold of objectionability, it was not grossly offensive. Further, there was no evidence that the reputation of the school had been damaged. Neither the disciplinary panel nor the tribunal believed that Mrs Higgs would let her views influence her work. In the circumstances dismissal was not even arguably a proportionate sanction. The EAT was wrong to remit the claim.

In summary, the Court held that:

• 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.
• However, if the dismissal is motivated not simply by the expression of the belief but by something objectionable in the way in which it was expressed, determined objectively, then dismissal will be lawful if, but only if, the employer shows that it was a proportionate response to the objectionable feature.
• Mrs Higgs had posted messages, mostly quoting from other sources, objecting to government policy on sex education in primary schools because of its promotion of gender fluidity and its equation of same sex marriage with marriage between a man and a woman.
• The school sought to justify her dismissal on the basis that the posts in question were intemperately expressed and included insulting references to the promoters of gender fluidity and ‘the LGBT crowd’ which were liable to damage the school’s reputation. However, neither the language of the posts nor the risk of reputational damage was capable of justifying dismissal in circumstances where Mrs Higgs had not said anything of the kind at work or displayed any discriminatory attitudes in her treatment of pupils.

What does this mean for employers?

This case shows again the challenges for employers when trying to balance conflicting protected characteristics in the workplace.  It also underscores the importance of careful, context-specific assessments in cases involving the manifestation of beliefs. Something that might be unproblematic if expressed on a private social media page could justify different treatment if communicated within the workplace. The following factors are likely to be relevant to this assessment:

• The interference in the expression of a protected belief should always be done in the least intrusive way possible to achieve the objective in question.
• The content, tone and extent of the statement or action in question are relevant.
• The likely audience of the statement or action should be considered.
• An employer should consider whether the employee has stated that the views expressed are their personal views, or whether they may present a reputational risk to the organisation.
• The nature of the employer’s business and whether the statement or action in question may impact its ability to run that business are relevant.

Higgs v Farmor’s School [2025] EWCA Civ 109       Higgs v Farmor’s School [2023] EAT 89