Background

In Higgs v Farmor’s School [2025] EWCA Civ 109, Ms Kristie Higgs was a teacher at the School. In October 2018, a parent at the School complained that she had expressed “homophobic and prejudiced views” on her Facebook page and after an investigation, she was suspended. Disciplinary charges were brought against her at a hearing in December 2018, and in January 2019 she was summarily dismissed for gross misconduct. An internal appeal was unsuccessful [1-2]. She took the matter to an employment tribunal, arguing discrimination and harassment, but was unsuccessful [4]; however, the Employment Appeal Tribunal upheld her appeal and remitted the claim to the ET [5]. She believed that the EAT should have gone further and held for itself that her claim succeeded, and she appealed to the Court of Appeal [6]. The School was refused permission to cross-appeal [7].

Her argument throughout was that though she had not been discriminated against or harassed “for her Christianity per se“, she had been discriminated against for expressing her lack of belief in “gender fluidity” and the possibility of changing one’s biological sex/gender, her belief in marriage as a divinely instituted life-long union between one man and one woman, her lack of belief in same-sex marriage, her opposition to sex and/or relationship education for primary school children and her conviction that she should “witness” her belief in the literal truth of the Bible to the world [27].

The appeal

Her claims were brought under Part 5 of the Equality Act 2010, which is concerned with discrimination at work, but the Court also thought it necessary to consider her Convention rights, particularly under Articles 9 and 10 [29], and the effect of s.3(1) of the Human Rights Act 1998 [42].

Ms Higgs appealed on four grounds [115]:

“GROUND 1: On the factual findings of the ET, supplemented by undisputed and indisputable facts of this case, the EAT was bound to conclude that the Respondent’s interference with the Appellant’s rights cannot be justified under Article 9(2) or 10(2), because:

(a) The interference was not ‘prescribed by law’;

(b) The interference was not justified by protecting the Respondent’s reputation;

(c) The interference was not justified by the protection of rights and freedoms of others. There is no right not to be offended, and the offence taken by the audience (‘heckler’s veto’) can never justify interference with Convention rights.

(d) The interference was not proportionate; and/or

(e) The interference could not be justified as necessary in a democratic society in the light of the essential principle of pluralism which underpins the Convention.

GROUND 2: The EAT has failed to direct itself, or to provide guidance to the ET on remission, on the principle that the Convention protects not only the substance of a manifestation/expression, but likewise the language and manner.

GROUND 3: The EAT has failed to address Grounds 5-7 of the Grounds of Appeal before it. Had it done so, it was bound to conclude, on the unchallenged factual findings of the ET supplemented by undisputed and indisputable facts of this case:

(a) that the complainant was guilty of unlawful stereotyping and therefore of discrimination

(b) Respondent adopted the discriminatory views of that third party and was thus had been [sic] guilty of direct discrimination.

GROUND 4: EAT has erred in failing to uphold Ground 4 of the Appellant’s appeal: The ET reached an impermissible conclusion and/or failed to properly explain its reasons for attributing Mr Conlan’s reasons to all other decision-makers; alternatively, misdirected itself in the identification of the relevant decision-makers.”

The judgment

On Grounds 1 and 2, the Court held that the EAT had been wrong to order remittal on the dismissal claim and that Ms Higgs’ dismissal constituted unlawful discrimination on the grounds of religion or belief [169] – and it was not, therefore, necessary to decide Grounds 3 & 4 [170]. Her appeal against the EAT’s decision to remit to the ET the issue of whether her dismissal was unlawfully discriminatory was therefore allowed. Underhill LJ dismissed her appeal against the decision to remit the remaining elements of her claim, “but … I hope and expect that a decision on those issues will not be necessary” [174].

His Lordship summarised his conclusions [at 175] to “assist non-lawyers or skim-readers” (and, he might have added, legal bloggers) as follows:

“(1) 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.

(2) 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 was expressed, determined objectively, then the effect of the decision in Page v NHS Trust Development Authority is that 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: see para. 74 above.

(3) Although point (2) modifies the usual approach under the Equality Act so as to conform with that required by the European Convention of Human Rights, that ‘blending’ is jurisprudentially legitimate: see paras. 81-97.

(4) In the present case the Claimant, who was employed in a secondary school, had posted messages, mostly quoted 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. It was not in dispute, following the earlier decision of the EAT in Forstater v GCD Europe, that the Claimant’s beliefs that gender is binary and that same-sex marriage cannot be equated with marriage between a man and a woman are protected by the Equality Act.

(5) 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 in the community: the posts had been reported by one parent and might be seen by others. However, neither the language of the posts nor the risk of reputational damage were capable of justifying the Claimant’s dismissal in circumstances where she had not said anything of the kind at work or displayed any discriminatory attitudes in her treatment of pupils: see paras. 159-163 above.

I emphasise that that is intended as no more than a broad summary. For anyone needing an accurate understanding of the details of our decision and the reasons for it, there is no substitute for a careful reading of the judgment in full.”