In Higgs v Farmor’s School 2025 EWCA Civ 109, the Court of Appeal has substituted a finding that Mrs Higgs had been directly discriminated against on the ground of her religion or belief.

What is Religion or Belief discrimination?

The Equality Act 2010 sets out that there are nine protected characteristics relating to discrimination in employment, one of which is Religion or Belief. Belief is defined (s.10 Equality Act 2010) as “any religious or philosophical belief and a reference to belief includes a reference to a lack of belief”.  Direct discrimination occurs where, because of religion or belief, a person treats another less favourably than they treat or would treat others.

What happened in the Higgs case at the employment tribunal/EAT?

Mrs Higgs was employed by Farmor’s School (the school) as a pastoral administrator and was a Christian.  She re-posted content on her personal Facebook page which criticised government policy on teaching primary school children about same-sex relationships and gender identity issues. 

A parent of a child at the school complained, saying “I’ve noticed that a member of your staff who works directly with children has been posting homophobic and prejudiced views against the LGBT community on Facebook.  I’m concerned that this individual may exert influence over the vulnerable pupils that may end up in isolation for whatever reason.  I find these views offensive and I am sure that when you look into it, you will understand my concern..”

The school investigated the complaint, viewing screenshots of the Facebook posts.  Those re-posts included Mrs Higgs using her own wording “Please read this! They are brainwashing our children!” referring to a government consultation into making Relationships Education mandatory in primary schools, and Relationships and Sex Education mandatory in secondary schools.  The re-post gave examples stating that …”this meant that children will 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 school subsequently dismissed her for gross misconduct, concluding that she had breached the school’s code of conduct.  Mrs Higgs submitted claims to the employment tribunal, including for direct discrimination on the ground of her religion or belief. 

The employment tribunal found that she had not been discriminated against or harassed because of her protected beliefs, but rather because of the provocative language she had used in her Facebook posts which might reasonably be perceived as homophobic and transphobic beliefs which did not qualify for protection under the Equality Act 2010.  Mrs Higgs appealed to the EAT, which largely found in her favour but remitted the case to the tribunal for further determination.  Mrs Higgs appealed to the Court of Appeal on the ground that the EAT should have upheld her claims for direct discrimination and harassment itself.

What did the Court of Appeal decide?

The Court of Appeal agreed with Mrs Higgs and held that Mrs Higgs’ dismissal was unlawful direct discrimination on the ground of religion or belief.  Underhill LJ stated “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 2010.  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 is expressed, determined objectively, then … the dismissal will be lawful if, but only if, the employer shows that it was a proportionate response to the objectionable feature – in short, that it was objectively justified.”

Whilst the school was entitled to object to the posts because of the offensive language towards gay and trans people, and because the context of sex education in schools was relevant to Mrs Higgs’ work in the school, Underhill LJ said that “dismissal was unquestionably a disproportionate response” in this case.  He found that:

·       Even if the language of the re-posts was objectionability, they were not grossly offensive.

·       The language the school had objected to was not Mrs Higgs’ own words (although she had repeated the word ‘brainwashing’).  She made it clear to the school that she did not agree with the language used, which did not absolve her of responsibility for re-posting it, but it was relevant to the degree of culpability on her part.

·       The school’s disciplinary panel accepted there was no evidence that the school’s reputation was damaged but were concerned about potential damage in the future. The disciplinary panel had concluded that there wasn’t any possibility that readers of Mrs Higg’s post would think they were the school’s views, and so reputational damage would only relate to the fear that she would express homophobic and transphobic views at work. The Court of Appeal accepted that the school’s reputation may have been harmed if it had become widespread, but that risk was only speculatory since the posts were made from Mrs Higgs’ personal account, in her maiden name, and made no reference to the school.

·       Even if readers of the posts might fear that Mrs Higgs would let her views influence her work, neither the disciplinary panel nor the employment tribunal believed that she would do so.  There had been no complaints about any aspect of her work for over six years.

·       The Court said it would have been open to the school, if it thought necessary, to issue a statement making it clear that it was confident that there was no risk that Mrs Higgs’ views would affect her attitude towards gay or trans pupils or parents.

·       It did not matter that Mrs Higgs had not recognised the possibility of her posts being offensive and had not taken the posts down during the disciplinary process, because where they are the manifestation of a deeply held belief it was understandable she would not be willing to concede her conduct was wrong.

Takeaways for employers

This case highlights the importance for employers in balancing the rights of employees who hold competing protected beliefs, or those with beliefs that may be considered to be objectionable or offensive by others. 

There will always need to be a balancing exercise as to the impact of dismissal on the individual, to the potential harm to colleagues and third parties as well as to the employer’s own business and reputation. The above considerations will be helpful in carrying out that decision-making process.  Employers must be able to show that they have considered matters based on their unique circumstances, and that any actions are objectively proportionate to the facts of the case.  It is important not to make stereotypical assumptions about the extent of the employee’s beliefs and impact of those beliefs.

To see the Court of Appeal decision in full, please see the following link:

https://www.judiciary.uk/judgments/higgs-v-farmors-school/

Please contact Jessica Jones on jones@ortolan.com for more information.