Higgs v Farmor's School – how should employers handle conflicting beliefs in the workplace?

In the increasingly complex landscape of employees manifesting their religious or philosophical beliefs in the workplace, employers are faced with the challenge of responding appropriately to manifestations of the myriad of conflicting views and ideologies in modern society. If those beliefs are protected under the Equality Act 2010 (“EA 2010”), employers may face direct discrimination claims if they take disciplinary action against employees for the way in which those beliefs are manifested.  The balance between protecting organisational interests and respecting individual rights is increasingly delicate and requires a nuanced approach.

The recent case of Higgs v Farmor's School serves as a pivotal example of how complicated it can be for employers to navigate such situations. In this case, a Christian school administrator was dismissed for gross misconduct after posting gender-critical and same-sex marriage critical views on her private Facebook page. A complaint was made by a parent of one of the pupils, leading to an investigation by the school, and ultimately Mrs Higgs’ dismissal. The Court of Appeal (the “CA”) has recently ruled that her dismissal was “clearly” a disproportionate response amounting to unlawful direct discrimination because of a protected belief. 

This article explores the facts of the case, why the dismissal was found to be unjustified, and how this ruling can practically guide employers when handling similar cases. 

It is also worth adding that it has recently been confirmed that Higgs has been appealed to the Supreme Court, which gives context to the controversy surrounding the CA’s ruling in this case (and the impact it is likely to have on discrimination law). 

The Law

“Religion or belief” is a protected characteristic under s. 4 EA 2010, which grants protection to both organised religions and “philosophical beliefs”, as long as they are firmly held as beliefs (rather than just opinions) and the belief is “worthy of respect in a democratic society” (a very broad criterion which is rarely not met). Mrs Higgs’ “gender critical” views were readily found to be protected under these criteria following the recent case of Forstater v CGD Europe, and her views against same sex marriage were held to be protected on similar grounds. In a direct discrimination claim, once the claimant has established that their belief is protected under the EA 2010, they must also show “less favourable treatment” because of the relevant belief (or lack thereof). It is then up to the respondent to show that this less favourable treatment is not because of the protected belief itself, but because of the “inappropriate” way in which it has been manifested (following Page v NHS Trust Development Authority).

The other main, and relevant, legal protection for such beliefs derives from Article 9 of the European Convention on Human Rights (“ECHR”). The wording of Article 9 (as clarified by case law) grants protection to manifestations of beliefs when there is a “sufficiently close and direct nexus between the act [of manifestation] and the underlying belief”, and such protection can only be overturned when penalising the act would be “proportionate” and “prescribed by law”. This right to manifest one’s religion or belief under the ECHR is often referred to by Employment Tribunals when considering discrimination cases under EA 2010, since s. 3 of the Human Rights Act 1998 requires primary legislation to be “read down” and given effect in a way that is compatible with the ECHR. 

Case Background

Mrs Higgs had been employed by Farmor’s School for six years. Her role largely involved overseeing students who had been removed from class for poor behaviour. In 2018, she made a number of Facebook posts (which were mostly reposts from another account) criticising the teaching of gender fluidity and same-sex marriage in primary schools, including referring to the “brainwashing” of children and the “supressing” of Christian beliefs. The reposts were more extreme in their criticism, referring to terms such as the “transgender roster”, “gender-free society of madness”, “the far-left zealots”, “cramming their perverted vision”, “child abuse”, and “promoting mental illness”. Mrs Higgs’ Facebook account used her maiden name, and did not indicate any connection to the school, although her identity was apparent to the parent who complained to the school.

A parent of a child at Farmor’s school contacted the head teacher complaining about these posts, alleging that Mrs Higgs had been “posting homophobic and prejudiced views against the LGBT community on Facebook”, and expressing concern that this may impact Mrs Higgs’ treatment of students (including LGBT students) in her care. The school conducted an investigation comprising a series of interviews overseen by a disciplinary panel. Mrs Higgs stated that she did not regret making the posts and largely agreed with the content of the original posts. Although she disagreed with some of the wording, she wanted her concerns to be circulated more widely and accepted that the posts might be seen by parents or pupils at the school. When asked whether she thought the language in the posts could be deemed offensive she stated “I am not against gay, lesbian or transgender people. It's about making sure people are aware of what's going on…I don't have any issues with gay, lesbian or transgender people, I love all people”. 

The investigation concluded that there was a case to answer but found no evidence that Mrs Higgs had expressed her views directly to pupils or staff or treated anyone differently based on sexual orientation or gender identity. Despite this, the school was concerned that the posts might lead to public perceptions of homophobia and transphobia, potentially harming its reputation. The disciplinary panel believed that Mrs Higgs had breached the school's Code of Conduct (i.e. inappropriate language which may demean or humiliate pupils) and noted her lack of regret for reposting the messages and failure to remove them. The panel deemed the language used in the posts as inflammatory and extreme, leading to offence and potential reputational harm, and decided on summary dismissal for gross misconduct. 

Mrs Higgs challenged the dismissal, claiming direct discrimination and harassment based on her religion or belief. Her belief comprised six statements, which broadly centred around a lack of belief in gender fluidity or that someone could change their biological sex or gender, a belief that marriage should only be between a man and a woman, an opposition to sex and relationship education for primary school children, and a belief that she was obligated to spread her Christian views. 

The Employment Tribunal accepted that Mrs Higgs’ beliefs were protected under the EA 2010 but dismissed her claims, finding that her dismissal was not due to her Christian beliefs as such, but rather the manner of manifestation of those beliefs. The “florid and provocative language” used in her posts and her manner of expression could be reasonably perceived as homophobic or transphobic by the public, which the Tribunal said justified the school’s actions. 

Mrs Higgs appealed to the Employment Appeal Tribunal (“EAT”), which decided that the Tribunal was incorrect in suggesting the actions could be separated in this way from her belief, as there was a “sufficiently close and direct nexus” between her conduct and her beliefs such that the Facebook posts constituted a manifestation of her religion or belief under Article 9 ECHR. The EAT therefore returned the case to the Tribunal to carry out a proportionality assessment. However, Mrs Higgs appealed to the CA, arguing that the EAT should have gone further and upheld her claim of direct discrimination. 

Court of Appeal Decision

The CA allowed Mrs Higgs’ appeal and delivered a comprehensive judgement covering the relevant legislation and case law. In doing so, it noted that the key considerations (including around the interplay of the EA 2010 and the ECHR, as above) had been set out previously in the case of Page. As such, the CA confirmed that Page required a judge to make two considerations when handling cases concerning manifestation of beliefs: 

1. first, identify the feature of the employee's conduct to which the employer could legitimately object; and 
2. second, assess whether the employer's response to that feature was proportionate – with the burden of proof being solely on the employer to prove proportionality.

The first step can often be handled quickly and exists just to separate out cases where the employer has manufactured an objection to obfuscate direct discrimination against the belief itself. The key step is the second: the question of proportionality. This strictly derives from the Article 9 considerations (and more specifically the “Bank Mellat” test of proportionality), however the CA noted this to be very similar to the familiar “proportionate means of achieving a legitimate aim” test common in indirect discrimination cases. 

In Page, the fact that the employee was a public-office holder, and high profile within the employer, combined with the fact that his comments about same-sex marriage were made publicly in a television interview (without consideration for staff or patients that might be impacted by the comments), led the CA (in that case) to reject the direct discrimination claim on the grounds that his removal from office was an objection justifiably taken against the manifestation of his beliefs. In Higgs, the CA revisited Page not only to cover the relevant considerations (see above) but also to distinguish the facts in explaining why the school’s decision to dismiss was not an objectively justifiable response to objectionable conduct. The CA accepted that the Facebook posts “unquestionably used offensive language” but on balance, the school’s decision to terminate her employment was not a proportionate response in the circumstances. In particular, the CA noted that:

• Mrs Higgs had consistently maintained that her personal views would not influence her professional conduct, nor had she exhibited any discriminatory attitudes towards pupils in her six years at the school (during which time she had also not received a single complaint). 
• Mrs Higgs had affirmed her commitment to not expressing prejudiced views against gay or transgender individuals in the workplace, and the school had not presented any argument suggesting she would act or had acted otherwise. 
• There was no evidence that the school's reputation had suffered any damage, noting that the posts were made on a forum that had no association with the school and would likely only have been seen by a small number of people (this notion of widespread circulation can be directly contrasted with the nationally broadcast television interview given by the employee in Page). 
• Readers of Mrs Higgs’ personal Facebook posts would not perceive them as reflective of the school's stance, given they were shared with approximately 100 people under a name she did not use professionally, and without any reference to the school. The CA stressed that if the forum had been a work social media channel (rather than a private Facebook page), the situation would have been different. 
• The Facebook posts were not primarily intended to incite hatred or disgust towards transgender or homosexual individuals. The CA described the “stupidly rhetorical exaggeration” used by multiple outside sources in the original posts and stated that the references to “child abuse” and “mental illness” were unlikely to be interpreted literally. It also made clear that the language used in the original posts was not Mrs Higgs’ own and noted that she did not agree with certain phrases (although this did not absolve her of responsibility, the CA considered it a relevant factor in its assessment). 

When reviewing these facts in line with the objective test of proportionality, the CA concluded that Mrs Higgs’ dismissal was not a proportionate sanction for her conduct. The CA acknowledged Mrs Higgs’ lack of insight into the consequences of her actions (demonstrated by her failure to remove the posts), but made clear that there could be no universal rule that this lack of insight could justify dismissal. 

The CA’s judgment confirms that the holding of a belief and the manifestation of that belief are treated differently at law, and there is a need for a “sufficiently close and direct nexus” between the manifestation of the belief and the belief itself for a case of direct discrimination to succeed. It also makes clear that there is a need to consider whether the less favourable treatment is “objectively justifiable” in the circumstances. It now seems clear that for religion and belief cases, dismissing an employee because of something objectionable in the way they express or manifest that belief can be justified without needing to sever the manifestation from the underlying belief, so long as the response is proportionate. The CA emphasised that the legal implications of the judgement in Higgs should not be “a carte blanche for employees to express their belief however they like”, but that it should serve as a “warning that freedom of expression needs to be treated more carefully” by employers when making decisions on sanctions, “even if it risks reputational damage”. 

Considerations for employers

The CA’s judgment in Higgs has led to widespread concerns on the part of employers who are wary of an increase in complex workplace interactions and confrontations and need to understand how to balance those differing views to maintain a neutral and tolerant workplace for everyone. Employers may find themselves needing to re-visit company policies and procedures around workplace conduct (and in particular the sections on inappropriate language and behaviour) in light of the warnings issued in this case and ensuring that these policies are clearly communicated to staff.

A key takeaway for employers, and particularly for those tasked with investigating employees or making disciplinary decisions, is to avoid stereotyping certain beliefs and jumping to conclusions with regards to whether the views expressed are necessarily linked to wider, more hateful ideologies (e.g. the assumption that a Christian who posts gender-critical or same-sex marriage critical views is transphobic or homophobic). Objective consideration needs to be given to the context and content in which the views are being expressed - would they likely be considered objectionable to the point of being grossly offensive, and is there a risk that those views expressed are likely to influence the employee’s day-to-day duties? 

Employers will also need to take account of the environment or forum in which the views have been expressed. It is now clear that there is a difference between views being expressed in the workplace compared to those being shared on a private social media page (although we note in Page that the views were expressed on national television). 

Another key point for employers to consider is reputational risk to the organisation. This will involve making a balanced risk assessment based on the facts, and an evaluation of whether a reasonable person would assume the employee is speaking in connection with or on behalf of their employer. In some cases, an option might be to issue a statement making it clear that the views expressed are the employee’s own and not representative of the organisation (and also to make clear that the views have had no impact on their work). 

Finally, an employer might consider the impact of a lack of insight on the part of the employee into their actions, and whether they have shown any remorse or contrition, which could indicate that further incidents can be prevented. However, this should not form the key basis for any disciplinary action as there may be reasons why employees are not willing to admit their conduct was wrong (even if they do regret their actions), particularly if it involved the manifestation of a deeply-held belief. 

It is clear that employers have to tread a fine line between safeguarding their own reputation (as well as protecting those who may feel harassed or targeted by the manifestation of certain beliefs, where this takes the form of a controversial view or opinion), whilst also respecting their employees’ freedom to manifest their beliefs. It seems likely that employers will increasingly face workplace tensions and potential employee conflict due to the changing and highly charged political, economic and social landscape. Balancing those differing viewpoints can be tricky to navigate against the backdrop of this complex and evolving area of law.  

Please reach out to your usual contact in our Internation Employment team if you would like any advice on the issues outlined in this article.