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Conflicting beliefs: Court of appeal ruling in Higgs v Farmor’s School

Conflicting beliefs: Court of appeal ruling in Higgs v Farmor’s School

Discover the key takeaways from the Higgs v Farmor’s School case on conflicting beliefs, workplace rights, and legal compliance.

25 February 2025

Case Study

The case

The Court of Appeal’s highly anticipated decision in Higgs v Farmor’s School has just been released.

Dealing with the issue of “competing workplace rights” and following a number of prominent judgments in this developing and contentious area. The case is one of a number that highlights the difficulties employers can face in striking the delicate balance between conflicting opinions. In particular, when staff choose to express those opinions online.

The facts of the case

Mrs Higgs was employed by Farmor’s School as an administrator. She posted criticism of the teaching of same-sex relationships and gender fluidity within schools. Her posts were made on a private Facebook page and in her maiden name. There was no obvious connection to her employer but one parent saw the posts and complained to the school. The posts were quite strong in their language (which the school referred to as “extreme and inflammatory”)- referring to ‘brainwashing, madness, devious scheme, child abuse and mental illness‘ and “the LGBTQ+ crowd”. However, there was no evidence that Mrs Higgs had ever expressed her views about gender fluidity or same-sex marriage to pupils or staff in the school or treated gay, lesbian or transgender pupils or staff differently, or that she intended to do so in the future.

On receipt of the complaint, the school suspended Mrs Higgs and she was later dismissed for gross misconduct. The school’s investigation found that her posts were a breach of their social media policy, that the content constituted harassment on the grounds of sexual orientation and/or gender reassignment and that the action could bring the school into disrepute.

Mrs Higgs brought claims before the Employment Tribunal claiming that she herself had been harassed and directly discriminated against on the grounds of her religion or belief (as provided for in the Equality Act 2010). Her beliefs were that gender fluidity does not exist; biological sex is immutable; and biblical teaching means that only a man and woman can be married.

The employment tribunal

At the first level, the Employment Tribunal (“ET”) acknowledged that Mrs Higgs’ beliefs were protected under the Equality Act 2010. However, it found that her dismissal was not due to her beliefs as such, but rather the manner of manifestation of her belief i.e. the language she used in her posts. The ET noted that whilst her beliefs protected her from discrimination, the right to offend others was not permitted. The ET deemed that her manner of expression could reasonably be perceived as homophobic and transphobic, justifying the school’s decision to dismiss her for gross misconduct.

The employment appeal tribunal

Mrs Higgs appealed the decision to the Employment Appeal Tribunal (“EAT”). The EAT upheld her appeal, finding that the original ET had failed to properly assess whether the school’s actions were related to the manifestation of her beliefs (not just the holding of those beliefs). The EAT emphasized the need for a proportionality assessment, balancing Mrs Higgs’ rights against the school’s legitimate concerns. The EAT remitted the claim to ET to be decided again but Mrs Higgs went to the Court of Appeal asking instead for the decision to be overturned and a judgment made in its place.

Case Study

The outcome

The court of appeal

The Court of Appeal (“CA”) chose to uphold Mrs Higgs’ appeal, finding that the ET would be bound to find that her dismissal was not objectively justified and accordingly that it constituted unlawful discrimination.

The CA considered that, even if the language of Mrs Higgs’ posts was objectionable, it was not grossly offensive. Importantly, it found no evidence that the reputation of the school had been damaged. It was a series of posts on a private Facebook page with no direct links to the employer. In evidence at the ET, it had been established that the disciplinary panel did not think that Mrs Higgs would let her views influence her work. In the circumstances, the CA found that dismissal was not a proportionate sanction.

The CA’s reasoning is important and said that:

The dismissal of an employee merely because they have expressed a religious or other protected belief will constitute unlawful direct discrimination.
However, if that dismissal is motivated not simply by the expression of the belief but by something objectionable in the way in which it was expressed, then the dismissal could be lawful if the employer can show that it was a proportionate response to the objectionable feature.
Mrs Higgs had posted messages, mostly quoting 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.
The school sought to justify her dismissal on the basis that the posts in question were “intemperately expressed” and included insulting references such as ‘the LGBT crowd’ which were liable to damage the school’s reputation. However, neither the language of the posts nor the risk of reputational damage was capable of justifying dismissal in circumstances where Mrs Higgs had not said anything at work or displayed any discriminatory attitudes in her treatment of pupils or colleagues. This dismissal was therefore not a proportionate response.

What to learn from this

This case highlights the need for careful assessment in cases involving the manifestation of beliefs. Often there will need to be a balancing act between conflicting opinions and remember that there is no hierarchy of beliefs- one does not trump another.

Each case really does turn on its own facts- and context is often key- but the following should be borne in mind:

The type of organisation of the employer- and whether the statements are capable of harm or damage
Whether the statement is expressed as a personal opinion, or whether it is represented as connected to their employment
The likely audience of the statement – whether it was sent openly or privately and on what type of forum
The language, content and tone of the statement

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