Higgs v Farmor's School & Ors [2025] EWCA Civ 109
Why the case matters
While it is clear that Christian beliefs are protected in the workplace, as are gender-critical beliefs (Forstater), it is less clear what should happen when either of those beliefs are expressed in an objectionable manner. At one end of the spectrum, there will be cases where the expression of beliefs is clearly hateful and intolerable, such that there is a misconduct issue to be dealt with. At the other end, there will be cases where a person is labelled as prejudiced or inciting hatred, merely for expressing protected beliefs which some regard as objectionable. Employers need to be able to recognise the difference between the two situations and not adopt too rigid or reactive an approach. It should also be remembered that lack of beliefs qualify for protection, including a lack of belief in gender fluidity.
This case also highlights how social media can make it hard to navigate the area between a person's private and work life; there is not such a clear separation as there used to be. In this case, Mrs Higgs had posted comments on Facebook about her opposition to how sex education was being taught in schools. While her Facebook account was private, a parent at the school came to view the posts and then complained to the school, characterising the views expressed on Facebook as transphobic.
The facts
Ms Higgs was a pastoral administrator at a secondary and is a practising Christian. In 2018, she made some Facebook posts which criticised primary schools' teachings of sex education. The inclusion of transgender ideology in particular was criticised, as were teachings about same sex marriage. After a lengthy investigation, Ms Higgs was dismissed for gross misconduct. The school indicated that these posts were likely to damage its reputation.
Ms Higgs then brought a claim in the Employment Tribunal for harassment and discrimination on grounds of religion or belief.
An employment tribunal dismissed her claims, holding that she was not discriminated against because of her beliefs but because of the objectionable nature of her posts. She appealed to the EAT, which allowed her appeal on the basis that the employment tribunal had erred in its approach to the law in this area, remitting the case to an employment tribunal.
Mrs Higgs' appealed to the Court of Appeal, seeking a finding of discrimination without it having to be remitted to another tribunal.
The decision
The Court of Appeal allowed Mrs Higgs' appeal. It held that dismissal was 'unquestionably a disproportionate response' in the circumstances. The posts in question (in fact reposts), were clearly not grossly offensive, even if they passed the threshold of objectionability.
Importantly, there was no evidence that the posts had damaged the reputation of the school or were likely to do so in future. As to the point that Mrs Higgs' views might adversely affect how she carried out her duties, there was no evidence to suggest this had occurred or might occur.
The Court of Appeal provided the following guidance:
- The dismissal (or discipline) of an employee merely because they have expressed a protected belief to which the employer (or a third party) objects, will constitute unlawful direct discrimination within the meaning of the Equality Act 2010.
- However, if the dismissal is because of something objectionable in the way in which the belief was expressed, determined objectively, then the dismissal will be lawful. What the employer must show is that the dismissal was a proportionate response to the objectionable feature, in short, that it was objectively justified.
Comment
When deciding whether the manifestation of a belief is a cause to discipline or dismiss a member of staff, employers should proceed with extreme care. Where a third party, or fellow employee, has complained that certain views are hateful or in breach of discrimination law, employers should not be unduly influenced by that characterisation but should form their own assessment. Labelling the purported wrongdoer in this way might itself be discriminatory and stereotypical assumptions can run both ways.
While the interference with a person's manifestation of religion or belief in the workplace may be justified in some circumstances, this was not one of them.
