In February, the Court of Appeal handed down a landmark judgment in the case of Higgs v Farmor's School [2025] EWCA Civ 109. The ruling has important implications for employers, particularly in terms of managing employees who may express controversial beliefs in and outside the workplace, including on social media.
In this case, the Court upheld an appeal against the decision of the Employment Appeal Tribunal and found that Mrs Higgs had been directly discriminated against on the ground of her religion or belief.
Mrs Higgs was employed as a pastoral administrator and work experience manager by Farmor's School. The school's head teacher received a complaint from a pupil's parent about a post that Mrs Higgs had posted on Facebook. Mrs Higgs had reposted a post by someone else that was related to the teaching of same-sex relationships, same-sex marriage and gender being a matter of choice. As a result, Mrs Higgs was dismissed on grounds of gross misconduct.
Mrs Higgs brought claims in the Employment Tribunal ('ET') for direct discrimination and harassment on the grounds of religion or belief under the Equality Act 2010. The ET dismissed her claims of discrimination and harassment, finding that she had been dismissed because of the way she had expressed her views and the concern about the possible reputational damage to the school rather than because of her beliefs.
Mrs Higgs subsequently appealed the ET's decision to the Employment Appeal Tribunal ('EAT') and then the Court of Appeal. In cases where the issue concerns religion or belief, case law has drawn a distinction between the holding of a belief, and the way the belief is expressed, referred to as 'manifestation of belief'. Therefore, dismissing an employee simply because they belong to a particular religion or hold a particular belief may be direct discrimination, presuming their belief is a protected one. However, if the employee has expressed their beliefs in an objectionable way, it may not be discriminatory if they are disciplined or dismissed as a result. This might be the case if they express their beliefs in a way that amounts to harassment of another employee or causes harm to a client or service user.
In considering action taken against employees arising from a manifestation of their beliefs, the Court applied a test of proportionality: the employer's actions must be proportionate taking all the circumstances into account.
In the Higgs case, the Court found that the school's decision to dismiss Mrs Higgs was not a proportionate response and that Mrs Higgs was subject to direct discrimination. In ultimately reaching this decision, the Court considered the following factors to be relevant:
- That Mrs Higgs' Facebook posts may have used unreasonable language but could not be construed as directly attacking the LGBT community.
- The language used was not Mrs Higgs' own due to the post being a repost.
- There was no evidence that the school's reputation was damaged. The posts were made on her personal Facebook account, which was in her maiden name and made no reference to the School.
- There was no possibility that readers of her posts would believe that her views represented those of the school and the school could have shut down any assumptions by issuing a statement.
- There was no evidence that Mrs Higgs had acted in a way at work that was inappropriate or that her beliefs caused her to treat pupils differently.
Implications
The Higgs v Farmor's School case ultimately reinforces the principle that individuals have a right to express their beliefs outside of their professional role, and this should not be interfered with lightly. If those views directly conflict with the core values or objectives of their employer or cause harm, employers must carefully consider the circumstances and seek to act proportionately. The case remains an important reference point in discussions about freedom of expression and how concerns about expression of beliefs should be addressed. In light of the judgment, employers dealing with similar issues in their workplace should carefully consider the position before taking any disciplinary or suspension action against the employee and ensure any responses to such issues are objective and proportionate. Additionally, employers should give careful consideration to relying upon concerns of 'potential reputational damage,' particularly where it is difficult to link the beliefs to the employer. This case indicates that there must be real evidence of damage or potential damage, and consideration given to whether other steps might be taken to mitigate those concerns.
