Guest post by Russell Sandberg on an interesting employment case.
The decision in Mrs K Higgs v Farmor’s School  ET 1401264/219 has attracted significant attention in the media. However, its importance in terms of the developing case law on religion or belief discrimination is not about its finding that there was no direct discrimination; it is rather about what it says about the fifth test for the definition of belief.
The claimant had made a number of reposts on Facebook concerning the teaching in schools on same-sex marriage and about gender fluidity with her commenting on the post that ‘they are brainwashing our children’. In response to an e-mail complaint to the school from an outsider, the claimant was suspended from her role as pastoral administrator and work experience manager at the school. Following a disciplinary hearing, she was dismissed on grounds of gross misconduct. The claimant subsequently presented her claim to the Employment Tribunal alleging that she had been discriminated against on grounds of religion and had not been harassed. The Employment Tribunal dismissed the claim.
Although the claimant is a Christian, her contention was not that she had been discriminated against or harassed for her Christianity per se, but rather due to, inter alia, her lack of belief in ‘gender fluidity’, belief in marriage as a lifelong union between one man and one woman and lack of belief in same-sex marriage, seeing the legalisation of same-sex marriage as being contrary to Biblical teaching.
The Employment Tribunal applied the usual Grainger PLC v Nicholson  UKEAT 0219/09/ZT tests to determine the definition of belief. It was accepted that the first four tests were met but the respondent contended that the final test (‘worth of respect in a democratic society’) had not been met.
The Tribunal was referred to the cases of Forstater v CGD Europe &Ors  ET 2200909/2019 and Mackereth v The Department for Work and Pensions & Ors  ET 1304602/2018. In these decisions, it was established that the balancing of competing rights is a consideration under this test and that a belief that leads the claimant not to respect the law would fail under the fifth test. These were the first cases where claims had failed because of the fifth test.
In Mackereth, a lack of belief in transgenderism and a belief that it would be irresponsible and dishonest for (say) a health professional to accommodate and/or encourage a patient’s impersonation of the opposite sex were all held to be ‘incompatible with human dignity and conflict with the fundamental rights of others, specifically here, transgender individuals’. Similarly in Forstater Employment Judge Tayler concluded that the ‘claimant’s view, in its absolutist nature, is incompatible with human dignity and fundamental rights of others’ since it denied ‘the right of a person with a Gender Recognition Certificate to be the sex to which they have transitioned’.
In Higgs v Farmor’s School, the Tribunal noted that these decisions were not binding on it. If the only way a person could manifest a particular belief was by acting unlawfully then that would not meet the fifth test. However, “the fact that an individual might choose to manifest his or her belief by acting unlawfully is not determinative of such inevitability” .
The Tribunal held that there was no reason why the claimant’s belief should necessarily result in unlawful action by her. Her beliefs might upset certain people but if Articles 9 and 10 ‘only extended to expressions of belief that could upset no-one they would be worthless’ . To conclude that such beliefs do not deserve protection ‘as the tribunals did in the cases that we were referred … seemed to us to be a strange and somewhat disturbing conclusion’.
The Tribunal concluded that it is ‘necessary for us to carry out a balancing act between those who hold the beliefs in question and those who oppose them’, considering the ‘mores of society at the present day’  and that the beliefs in question did satisfy the final test in Grainger and did attract the protection of the Equality Act. However, there was no direct discrimination because the respondent’s actions were not on grounds of the claimant’s beliefs. There was also no harassment because ‘the causal nexus between the protected characteristic and the actions of the school was not made out’ .
This decision is therefore potentially important in showing how the fifth test is to be applied and for nuancing the elucidation of the test as it had been expressed in Forstater and Mackereth: the balancing of competing rights is a consideration under this test and a belief that necessarily leads the claimant not to respect the law would fail under the fifth test.
My reading of Higgs was that the claimant might have been unfairly dismissed, but had neglected to plead unfair dismissal (para 42), instead, putting all her eggs in the discrimination and harassment baskets, and (what’s more) with reference only to her actual beliefs, not also to other beliefs with which she became associated in the mind of the employer?
She held beliefs (para 30) that were held to be protected (for reasons that Russell Sandberg has written about, dissenting from the non-binding precedents of Mackereth and Forstater), but was believed mistakenly to have manifested different beliefs from her actual beliefs, different beliefs that (it was said) weren’t protected. Her pleading was of discrimination on the grounds of her actual beliefs, and no such discrimination was found in fact. She hadn’t pleaded discrimination on the grounds of the unprotected beliefs mistakenly attributed to her.
Aren’t the dicta on which Mr Sandberg has focused therefore obiter, the judge having found, as a matter of fact, that Higgs had not suffered discrimination on the grounds of her actual beliefs? She had failed to prove what she pleaded, discrimination on the grounds of those beliefs. Why then was it necessary to consider at all whether those beliefs would have been protected if it had been on the grounds of those beliefs that she had alleged discrimination?
Similarly, the other beliefs, which the claimant didn’t hold, were not pleaded as beliefs on the grounds of which she pleaded discrimination (although she was mistakenly associated with those beliefs), isn’t any discussion also obiter as to whether those beliefs would be protected, if they became the grounds of discrimination, in a different claim?
Thanks for this.
Yes, it is clear from the judgment that the Tribunal were concerned with whether there was direct discrimination or harassment on the basis of the beliefs that she put forward. They found that those beliefs did fall under the Equality Act but that the school’s actions were not on those grounds and so the claim failed.
As paras 66 and 67 put it:
‘Our only task was to decide if there was a causal connection between the beliefs in paragraph 30 and the treatment meted out to Mrs Higgs.
‘We concluded that there was not. Our view was that her treatment was not because of the relevant beliefs and accordingly her claim of direct discrimination failed’
For me, these paragraphs are not obiter – though the point about the definition of belief might be. (Though I would suggest that it is an important obiter comment on that it does not follow the other cases on the fifth test. I’d also question whether the ratio / obiter distinction is meaningful in the context of employment tribunals given that their decisions do not create binding precedent).
Paragraphs 63 and 64 suggest that she might have been dismissed because of other beliefs and para 65 raises the fact that she had not pursued a claim of unfair dismissal so the consideration of whether the school’s actions were reasonable etc were not relevant (para 64). But paragraph 66 states that:
‘That was not a subject canvassed before us, for the simple reason that it was irrelevant to our considerations’.
This raises an interesting point of whether the case would have succeeded had it been argued as unfair dismissal and had different beliefs been relied on. I didn’t reflect on these hypotheticals in my post – largely because I was mostly interested in what the case said about the definition of belief given the departure from the earlier cases.
If Higgs had pleaded unfair dismissal, I don’t see how she could possibly have lost her claim. Para 42 hints that strongly.
Upon reading before the start of the hearing about Higg’s claim, in an email of Christian Concern’s to its mailing list, I wrote to Christian Concern, believing that writing what I wrote was something God wanted me to do. I expressed concern at the unnecessarily confrontational way in which Higgs was pleading her case. I warned that she was likely to lose like that. I suggested that she could easily win her claim if she amended her approach, suggesting focusing on “unfair dismissal”. (My email to Christian Concern is published on my Twitter profile.)
With my having no qualifications as a solicitor or a barrister, and with my never having read the legal papers I was criticising as having been badly drafted, my email could and should only have been interpreted as prophetic rather than unsolicited legal advice from a non-lawyer. That makes the point which you describe as “interesting” even more interesting to me than it is to you. Christian Concern hasn’t commented on my timely warning, their decision not to heed it (or even to acknowledge it), and the disappointing outcome that ensued. I had predicted, that Higgs would lose unless she amended her approach to rely on allegations easy to prove, such as “unfair dismissal”.
What I meant when saying that certain dicta were obiter was only that the finding of fact that Higgs did not suffer the discrimination on the grounds of her actual beliefs as pleaded (putting paid to her discrimination claim without more) meant that it was unnecessary to consider whether those beliefs or other beliefs she did not hold and had been mistakenly believed to have expressed were protected. I agree 100% with your idea that certain obiter dicta can nevertheless be useful.
^ Sorry, paragraph 65, not paragraph 42.