A clash of beliefs: The Higgs v Farmor’s School case

At a glance

• Mrs Higgs was dismissed by Farmor’s School for Facebook posts criticising same-sex relationships and gender fluidity, which were deemed homophobic and transphobic.
• Her beliefs were protected under the Equality Act 2010 (Act), but her dismissal was justified due to the manner of her expression.
• The Employment Appeal Tribunal (EAT) upheld her appeal, emphasising the need for a proportionality assessment.
• The Court found her dismissal was not objectively justified and constituted unlawful discrimination, as her posts were not grossly offensive and did not damage the school's reputation.
• Employers must carefully assess the context and manner of belief expression, ensuring any interference is proportionate and minimally intrusive.

The Court of Appeal’s decision in Higgs v Farmor’s School 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 was employed by Farmor’s School as a pastoral administrator and work experience manager. In 2018, a parent emailed the head teacher complaining that Mrs Higgs had expressed ‘homophobic and prejudiced views against the LGBT community’ on Facebook. The posts in question (actually reposts) critiqued the teaching of same-sex relationships and gender fluidity in schools. The posts referred (among other terms) to ‘brainwashing, transgender roster, madness, devious scheme, child abuse and mental illness'. There was no evidence that Mrs Higgs had ever expressed her views about gender fluidity or same-sex marriage to pupils or staff in the school or treated gay, lesbian or transgender pupils or staff differently, or that she intended to do so in the future. The school suspended and subsequently dismissed Mrs Higgs for gross misconduct, on the grounds that her posts constituted harassment on the grounds of sexual orientation and / or gender reassignment against the complaining parent, inappropriate use of social media that could bring the school into disrepute, and breach of the school’s code of conduct.

Mrs Higgs claimed that she had been directly discriminated against and harassed on the ground of religion or belief and that she held the following beliefs which had resulted in her mistreatment:

• Lack of belief in gender fluidity.
• Lack of belief that someone could change their biological sex or gender.
• Belief in marriage as a divinely instituted life-long union between one man and one woman.
• Lack of belief in same-sex marriage (as contrary to biblical teaching).
• Opposition to sex and relationship education for primary school children.
• A belief that when unbiblical ideas or ideologies are promoted, she should publicly witness to biblical truth.
• A belief in the literal truth of the bible, and in particular Genesis 1v 27: 'God created man in His own image, in the image of God He created him; male and female He created them'.

The Tribunal’s Decision

The employment tribunal acknowledged that Mrs Higgs’ beliefs were protected under the Act. However, it concluded that her dismissal was not due to her beliefs as such, but rather the manner of manifestation of her belief ie the language she used in her posts. The tribunal deemed that her manner of expression could reasonably be perceived as homophobic and transphobic, justifying the school’s actions. Whilst the Act gives employees the right not to be discriminated against on the ground of manifesting a belief, that right is not unqualified.

The Employment Appeal Tribunal

Mrs Higgs appealed the decision, arguing that her dismissal was a direct result of her protected beliefs. The EAT upheld the appeal, finding that the original tribunal had failed to properly assess whether the school’s actions were related to the manifestation of her beliefs. The EAT emphasised the need for a proportionality assessment, balancing Mrs Higgs’ rights against the school’s legitimate concerns. The EAT remitted the claim to the tribunal.

The Court of Appeal

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.

Key takeaways

This case 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.