Background

In Higgs v Farmor’s School [2023] EAT 89, Mrs Higgs worked as a pastoral administrator and work experience manager at Farmor’s School. Complaints were received about Facebook posts that she had made about relationship education in primary schools: in particular, she re-posted someone else’s post, heading it, “PLEASE READ THIS! THEY ARE BRAINWASHING OUR CHILDREN!” [5]. She also re-posted similar material. She accepted that her posts might have been seen by parents of pupils at Farmor’s School, though she pointed out that she had not mentioned the school itself [9].

She was suspended and, after a disciplinary investigation and an appeal, dismissed [16 & 17]. She took the school to an Employment Tribunal, arguing that her dismissal amounted either to direct discrimination because of her protected beliefs or to harassment relating to them.
Before the ET, she argued that she held the following beliefs (or lack of beliefs: (a) lack of belief in “gender fluidity”; (b) lack of belief that someone could change their biological sex/gender; (c) belief in marriage as a divinely instituted life-long union between one man and one woman; (d) lack of belief in “same-sex marriage” (recognising that same-sex marriage was legal, she believed this was contrary to Biblical teaching); (e) opposition to sex and/or relationship education for primary school children; (f) a belief that when unbiblical ideas or ideologies are promoted, she should publicly witness to Biblical truth; (g) a belief in the literal truth of the Bible, and in particular Genesis 1v 27 [17].

The school argued that her beliefs under (a) and (b) did not meet the test for protection under s.10 Equality Act 2010 as laid down in Grainger plc v Nicholson [2010] ICR 360 EAT. The ET rejected that argument, and that part of its determination was not appealed [20]. The ET also held that Mrs Higgs had no real expectation of privacy in relation to her Facebook posts and that the school had been entitled to take action in relation to them, on the basis that “anyone posting on such a platform as Facebook effectively loses control of their posts, at least when a large number of people can access them” [22]. Again, there was no appeal against that part of the decision.

The ET concluded that the school had sacked her because of its concerns that someone reading her posts could reasonably assume that she held homophobic and transphobic views (an accusation which she denied) and that the reason for her dismissal was neither because of nor related to her protected beliefs [26 & 27].

She appealed, and the Employment Appeal Tribunal ruled in her favour, at least provisionally. The EAT also gave the Archbishops’ Council of the Church of England permission to make general submissions as an intervenor, though it was neutral as to the particular merits of the claims [3].

The grounds of appeal

The grounds of appeal were as follows:

1. The ET had erred in law in failing to consider the proportionality of the interference with the manifestation of her religious/philosophical beliefs.
2. The ET had failed to consider whether that interference was “prescribed by law”.
3. The ET had wrongly held that the school could lawfully restrict Mrs Higgs’s right to freedom of speech to the language of an ET pleading.
4. The ET had reached an impermissible or inadequately explained conclusion in attributing the views of Mr Conlan (who had chaired the disciplinary panel of three governors) to all other decision-makers.
5. The ET had been wrong to find that the school had not discriminated against Mrs Higgs when it investigated and dismissed her because of the complainant’s objection to her beliefs.
6. The ET had erred and/or reached a perverse conclusion in holding that it was reasonable for third parties reading her posts to conclude she was homophobic or transphobic.
7. It had been perverse for the ET to find the reason for her dismissal was because of the views of third parties, and, in any event, it was apparent that she was dismissed because a (discriminatory) stereotype had been applied to her views [59].

The school’s response

For the school, it was submitted that the ET had been entitled to approach the case through the Equality Act, albeit in the wider context of articles 9 and 10 ECHR. In a claim of direct discrimination, the key question was “the reason why” the respondent had acted as she did. In asking itself that question, the ET had concluded that the act of which Mrs Higgs had been accused, and eventually found guilty, was “posting items on Facebook that might reasonably lead people who read her posts to conclude that she was homophobic and transphobic” and it had been entitled to find that the words shared and endorsed by her might reasonably be regarded as having that effect. It had been permissible for the ET to find that the action was “not on the ground of her beliefs but rather for a completely different reason, namely that as a result of her actions she might reasonably be perceived as holding beliefs that would not qualify for protection (… beliefs that she denied having)” [68].

It was, however, conceded by the school that there was a manifestation of Mrs Higgs’s beliefs and that although the ET appeared to have found that her posts were not sufficiently linked to her underlying beliefs to meet the Eweida test, its reasons did not demonstrate how it had made that distinction [70].  The school also accepted that the ET had not undertaken the requisite balancing exercise under Articles 9(2) and 10(2) ECHR because it had found that her treatment had not been a consequence of her expressing her beliefs in a temperate and rational way, but because the school felt that the language used in those posts might reasonably lead someone who read them to conclude that she held homophobic and transphobic views that she expressly rejected [71]. The school also accepted that it was hard to see that the ET had engaged with Articles 8 and 9 ECHR: it had failed to consider whether any interference was “prescribed by law” or to test the proportionality of such interference with her rights [72]. The school rejected the other grounds of appeal [73].

The views of the intervenor

The Archbishops’ Council submitted that under the case-law relating to the ECHR and the Framework Directive, rights to freedom of religion or belief and to freedom of speech were based on the core values of pluralism, tolerance, and dialogue and any limitation of those rights had to be strictly proportionate to the aim pursued. However, difficulties could arise as to when “objection could justifiably be taken” to the manifestation of a religion or belief, “such that the reason why an employer acts is no longer because of the religion or belief but because of the objectionable manner of its manifestation” and that could create uncertainty that could itself have a chilling effect on the rights in question [77].

A strict proportionality assessment was required in the application of Articles 9(2) and 10(2) ECHR which had to be undertaken “with the need to encourage pluralism, tolerance and dialogue firmly in mind”. In the employment context, practical considerations would include the content of the manifestation, the tone of the manifestation, the worker’s understanding of the audience’s views, the extent and nature of any intrusion on others’ rights, including whether it gives rise to a substantial impact on the employer’s ability to run its business, whether the manifestation was to a wide disparate audience on social media or to a smaller group of people closely connected to the workplace, whether the worker had made it clear that the views are personal or whether s/he could fairly be seen to represent the views of the employer, the nature of the worker’s role, the nature of the employer’s business, and whether there were less intrusive measures open to the employer [78].

Recognising that public debate had become increasingly strident and reconciliation of opposing views harder to achieve, the Church had sought to promulgate a framework (set out in its “Pastoral Principles”) to help its members to engage in difficult discussions, including the manner in which a strongly-held conviction was expressed, and considered that people should be free to express their views in an environment of mutual respect and tolerance [76].

The judgment

Mrs Higgs had argued that the school’s actions against her had all been either because of, or related to, her protected characteristic.  The key question for the ET, therefore, was why, in each of the respects complained of, the school had acted as it did: was it because of, or related to, her protected characteristic of belief? [79]. The ET had concluded that no distinction could be drawn between the reasons that informed each of the actions in issue: “the entire proceedings … were motivated by a concern … that, by reason of her posts, [the claimant] would be perceived as holding unacceptable views in relation to gay and trans people” [ET, para 63]. Mrs Higgs had also argued in Ground 4 that the ET had wrongly attributed Mr Conlan’s reasoning to all the other actors or, alternatively, that it had failed adequately to explain its conclusion on that point. Eady J rejected that argument [80].

The ET had found that the reason for the school’s actions was

“not because of, or related to, the claimant’s actual beliefs but because of the concern that her posts might be seen as evidence that she held other beliefs, which might be described as ‘homophobic’ or ‘transphobic’ …. the difficulty with the ET’s analysis is that it did not engage with the question whether this was, nonetheless, because of, or related to, the claimant’s manifestation of her beliefs. In answering that question, the views or concerns of the respondent were not relevant … ; applying the test laid down at paragraph 82 Eweida v UK (2013) 57 EHRR 8, the ET needed to consider whether there was a sufficiently close or direct nexus between the claimant’s protected beliefs and her posts (relied on by her as amounting to a manifestation of those beliefs) [81]”.

“The respondent’s views were relevant when determining whether there had in fact been any interference with the claimant’s right to manifest her beliefs and to freedom of expression – whether its treatment of her was because of, or related to, her exercise of those rights – but could not be determinative of the prior question, whether there was a sufficiently close or direct link between the claimant’s posts and her beliefs such as to mean that those posts were to be viewed as a manifestation of her beliefs.  If they were, then the ET needed to determine the “reason why” question by asking itself whether this was because of, or related to, that manifestation of belief (prohibited under the Equality Act), or whether it was in fact because the claimant had manifested her belief in a way to which objection could justifiably be taken…” [82].

Had the ET properly engaged with the Eweida question, it would have concluded that there was a close or direct nexus between Mrs Higgs’s Facebook posts and the beliefs that she had relied on in her claims, and it should then have assessed whether the actions of the school were prescribed by law and necessary for the protection of the rights and freedoms of others. In doing so, the ET needed to recognise the essential nature of the claimant’s right to freedom of belief and to the freedom to express that belief before undertaking the proportionality assessment laid down in Bank Mellat v HM Treasury (No 2) [2014] AC 700 [83].

The ET’s approach had failed to engage with Mrs Higgs’s rights, and it had not carried out the requisite balancing exercise when seeking to determine whether the mental processes behind the school’s action had not involved Mrs Higgs’s beliefs, but only their objectionable manifestation. It should have considered whether that motivation had arisen out of Mrs Higgs’s manifestation of her protected beliefs or by a justified objection to that manifestation [84]. It had not been perverse for the ET to find that the language used in her posts was “florid and provocative”, but there was merit in her broader objection that the ET had failed to engage with the nature of her rights ­– which included the right to hold and to express views on controversial matters of public interest even where those views might offend, shock or disturb [85].

Mrs Higgs’s right to manifest her beliefs even when expressed in terms that might disturb or offend was a qualified right that could be limited to the extent prescribed by law, in pursuit of a legitimate aim and necessary in a democratic society [86]; however, the ET’s did not appear to have considered whether or not the restriction placed on the manifestation of her beliefs was “prescribed by law” ­– which potentially rendered the decision unsafe [87].

As to the requirement that the restriction must be in pursuit of a legitimate aim, the ET had evidently considered that the school’s actions were concerned to protect the rights, freedoms and reputation of others; however, the ET had failed to carry out any assessment of the proportionality of those actions – which would have required it to balance the interference with the claimant’s fundamental rights against the legitimate interest arising in respect of the rights, freedoms and/or reputation of others [88].

As to the Archbishops’ Council’s submission that more general guidance should be provided, “not only to assist the ET in carrying out the proportionality assessment required but to better inform employers and employees as to where they stand on issues arising from the manifestation of religious or other philosophical beliefs” [92], Eady J considered that “a danger can arise from any attempt to lay down general guidelines in cases such as this” [93]. That said, however,

“the considerations identified by the intervenor are likely to be relevant, such that regard should be had to: (i) the content of the manifestation; (ii) the tone used; (iii) the extent of the manifestation; (iv) the worker’s understanding of the likely audience; (v) the extent and nature of the intrusion on the rights of others, and any consequential impact on the employer’s ability to run its business; (vi) whether the worker has made clear that the views expressed are personal, or whether they might be seen as representing the views of the employer, and whether that might present a reputational risk; (vii) whether there is a potential power imbalance given the nature of the worker’s position or role and that of those whose rights are intruded upon; (viii) the nature of the employer’s business, in particular where there is a potential impact on vulnerable service users or clients; (ix) whether the limitation imposed is the least intrusive measure open to the employer” [94(5)].

The appeal was allowed. But:

“this is not a case where it can properly be said that only one outcome is possible, and the appropriate disposal must be for this matter to be remitted for determination … It will … be for the ET on the remitted hearing to determine, recognising the essential nature of the claimant’s rights to freedom of belief and freedom of expression: (1) whether the measures adopted by the respondent were prescribed by law; and, if so, (2) whether those measures were necessary in pursuit of the protection of the rights, freedoms or reputation of others. Undertaking that analysis will enable the ET to determine whether the respondent’s actions were because of, or related to, the manifestation of the claimant’s protected beliefs, or were in fact due to a justified objection to the manner of that manifestation, in respect of which there was a clear legal basis for the claimant’s rights to freedom of belief and expression to be limited to the extent necessary for the legitimate protection of the rights of others” [91: emphasis added].

So that is by no means the end of the story.