20.02.2025

The Court of Appeal has given its judgment in the key case of Higgs v Farmor’s School, which centres on the difficult issue of how employers should manage conflicting rights in the workplace – in this case how best to balance gender-critical views and beliefs relating to LGBT+ with the rights of the LGBT+ community. This is a complex and evolving area of law, which can be extremely difficult for employers to navigate, particularly where they believe that their reputation may be at risk.

Moving forward, this judgment should help employers approach the challenges that come with managing the expression of workers’ strong personal views in, or even (as is often the case with social media) outside the workplace.

Background 

Under the Equality Act 2010 (EqA 2010), a worker is protected from discrimination on the grounds of religion or belief. Previous case law has established that this includes protection for the “manifestation” of a worker’s belief, i.e. if they do something that is very closely connected to their belief such as wearing a religious symbol, avoiding certain food or drink or attending a place of worship. In addition, individuals have the right to freedom of beliefs and to express those beliefs under the European Convention on Human Rights. These rights and freedoms are qualified, however, and are generally subject to the protection of “the rights and freedoms of others”. 

Facts and ET and EAT decisions

Ms Higgs was disciplined and dismissed from her employment in a secondary school (as a pastoral administrator and work experience manager) after she re-shared articles on her personal Facebook page which criticised the introduction of teaching about LGBT+ relationships in primary schools and gender being a matter of choice, and also posted her own critical comments. The school, having received a complaint from a parent who had seen the Facebook posts, decided that someone reading Ms Higgs’ posts would think that she had unacceptable homophobic and transphobic views. Following a disciplinary process, Ms Higgs was dismissed for gross misconduct. The school found (relying on the complaint from the parent) that the Facebook posts created a potential risk of harm to the school’s reputation and that Ms Higgs had breached the school’s code of conduct. Ms Higgs brought claims in the Employment Tribunal (ET) for discrimination on the grounds of her beliefs relating to LGBT+ issues and gender and of certain of her religious beliefs.

The ET found in favour of the school. Whilst accepting that all of Ms Higgs’ beliefs fell within the protection of the EqA 2010, it decided that the school’s actions were not because of, or related to, the protected beliefs, but rather because of Ms Higgs’ conduct in making the social media posts. The posts could lead someone reading them to conclude that Ms Higgs had homophobic and transphobic views and the school had considered the potential for this to negatively impact on various groups of people, including pupils, parents, staff and the wider community.  

Ms Higgs appealed, arguing that her dismissal was a direct result of her protected beliefs. The Employment Appeal Tribunal (EAT) found that there was a sufficiently close link between the Facebook posts and Ms Higgs’ beliefs such that they were a manifestation of her beliefs (and that the ET had failed to properly consider this issue and had therefore taken the wrong approach). In its view, the ET should have assessed whether the school’s treatment of Ms Higgs was because of/related to the manifestation of her beliefs or because she had manifested those beliefs in a way which was unjustifiably objectionable. This essentially meant considering whether the school’s actions in dismissing Ms Higgs were objectively justifiable given the restrictions on her rights to freedom of belief and freedom of expression.  The EAT sent the case back to the ET for this determination, but following an appeal from Ms Higgs on this point, the case in fact proceeded to the Court of Appeal (CA). 

Court of Appeal decision 

The CA decided that Ms Higgs’ dismissal was not a justified proportionate response to her actions and amounted to unlawful discrimination on the ground of religion or belief. 

The CA said that the school was entitled to object to Ms Higgs’ Facebook posts, recognising that the language in them was offensive to gay and/or trans people and because the context of sex education in schools was relevant to Ms Higgs’ work. However, it looked at the language Ms Higgs had used (and re-posted) quite closely and essentially found that, even if the language was objectionable, it was not grossly or gratuitously offensive. The CA took account of the fact that the worst language was in the re-posted elements, and Ms Higgs had said she did not agree with the language used. The CA also considered that there was no evidence that the school’s reputation had been damaged, and that the school had agreed that no one would think Ms Higgs’ posts represented its views.  In addition, the posts were made from Ms Higgs’ personal account and made no reference to the school.  Notably, the CA placed weight on the school not believing that Ms Higgs’ beliefs (or posts) would affect her work and there having been no concerns about Ms Higgs’ work in the six years she had been employed at the school.

What does this judgment mean for employers?

Looking ahead, the significant complexity of this area of law means that this CA decision is going to be relevant for other cases on similar issues which are due to reach the EAT and courts soon.  It is certainly a notable decision that employers should take into account when dealing with situations where individuals hold strong beliefs and the impact the manifestation of those beliefs might have on a workplace and an employer’s reputation. In each situation where competing protected beliefs are in conflict, the employer must consider the specific circumstances carefully, undertake any investigation in a thorough manner and ensure that any disciplinary process (and sanction that they choose to enforce) is truly proportionate in response.  Key factors may include whether the expression of belief took place inside or outside of work, that the threshold for speech being objectionable seems to be high and that the risk of reputational damage should not be overstated. 

In practice, taking active steps to foster a workplace culture that emphasises the importance of dignity and inclusion can go a long way towards reducing internal conflict on such issues and place an employer on the best footing for resolving problems that do arise.

How we can help

We will be covering this case further at our Spring Employment Law Updates. Click here to book your place.

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