Higgs v Farmor’s School (2023)

At a glance

  • The case of Higgs v Farmor’s School has been remitted to the employment tribunal (and now to the Court of Appeal) after the Employment Appeal Tribunal decided that the employment tribunal had erred in law and upheld Mrs Higgs’ appeal.
  • It is acknowledged that Higgs’ gender critical beliefs, as determined by her Christian beliefs, are protected characteristics under the Equality Act 2010, however the Court of Appeal is due to determine whether and, if so why, Mrs Higgs was discriminated against and dismissed due to her beliefs.


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.


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.”

What does this mean for employers?

This case shows again the challenges for employers when trying to balance conflicting protected characteristics in the workplace.

While the EAT acknowledged the danger in laying down guidelines in a case such as this one, it did set out what it called ‘basic principles’ underpinning the approach when assessing the proportionality of any interference with rights to freedom of religion and belief and of freedom of expression. These are as follows:

  • The foundational nature of the rights must be recognised: the freedom to manifest belief (religious or otherwise) and to express views relating to that belief are essential rights in any democracy, whether or not the belief in question is popular or mainstream and even if its expression may offend.
  • Those rights are, however, qualified. The manifestation of belief, and free expression, will be protected but not where the law permits the limitation or restriction of such manifestation or expression to the extent necessary for the protection of the rights and freedoms of others.
  • The employer must always consider whether its objective is sufficiently important to justify the limitation of the right in question, whether the limitation is rationally connected to that objective, whether a less intrusive limitation might be imposed and whether, balancing the severity of the limitation on the rights of the worker concerned against the importance of the objective, the former outweighs the latter.
  • In answering those questions, the following points are likely to be relevant:
    • the content of the manifestation;
    • the tone used;
    • the extent of the manifestation;
    • the employee’s understanding of the likely audience;
    • the extent and nature of the intrusion on the rights of others and any impact on the employer’s ability to run its business;
    • whether the worker has made clear that the views expressed are personal or whether they might be seen as representing the views of the employer, and whether that might present a reputational risk;
    • whether there is a potential power imbalance given the nature of the employee’s position or role and that of those whose rights are intruded upon;
    • the nature of the employer’s business, in particular where there is a potential impact on vulnerable service users or clients; and
    • whether the limitation imposed is the least intrusive means open to the employer.

Higgs v Farmor’s School [2023] EAT 89