It has been a long time coming but the Court of Appeal has finally handed down the judgment in Higgs v Farmor’s School.
Just by way of background, the Claimant was a Christian secondary school counsellor. She made Facebook posts where she criticised the teaching of sex education in primary schools. Her criticism was levelled at transgender issues and her view that same sex marriage was not equivalent to that between a man and a woman. As a result of the posts, the Claimant was dismissed for gross misconduct on the basis that the posts were likely to damage the Respondent Schools’ reputation.
The Claimant claimed that her dismissal was discriminatory on the grounds of her religious beliefs which included –
- The lack of belief that a person could change their biological sex; and;
- The belief that marriage is an institution between a man and a woman.
This case has already been heard in the Employment Tribunal, the Employment Appeal Tribunal (which remitted the case to a fresh Tribunal) and now, the Court of Appeal. The Facebook posts were made in 2018 – this case has already been rumbling along through the courts for the past 7 years.
Today, the Court of Appeal found in favour of the Claimant, Ms Higgs. Underhill LJ summarised his reasoning at paragraph 75 of the judgment:
- 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.
- 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 dismissal was a proportionate response to the objectionable feature – in short, that it was objectively justified.
- 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.
- 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.
- 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.
It is this final point that is key in religion and belief cases – the focus on the manifestation of the belief, i.e. how the belief is articulated. The Court of Appeal found in this case that the dismissal of the Claimant was not justified because the language of the posts and the potential risk to the Respondent Schools’ reputation were not of a level to warrant the action taken, i.e. the Claimant’s dismissal. An employer has to be able to justify the approach it takes as being proportionate. It is the ability for an employer to justify the approach taken in response, that is key. The same issue arose in the case of Omooba where the Employment Appeal Tribunal held that the Claimant’s contract with both Respondents was due to the adverse publicity that her publicly posted views (that homosexuality is a sin) generated rather than the views themselves.
This is a fascinating yet complicated area of law and one in which didlaw has been a key player and continues to be. The forum of belief in discrimination case law is riddled with competing challenges and balances. One must consider an individuals’ right to freedom of speech alongside ensuring that any protected belief is worthy of respect in a democratic society. Any freedom of speech has to be coupled with and measured against societal norms, tolerance and boundaries. One has to consider where do the rights of the individual lie and how far do those rights extend? Is your right to say what you want unfettered? Clearly not. There is a proportionality threshold which, as demonstrated in Higgs v Farmor’s, was not met in terms of the actions of the Respondent School, in choosing to dismiss the Claimant for reasons connected with the manifestation of her beliefs.
This area of law is developing quickly and is sure to see much more court time including two other key cases to be heard in 2025 which are Ngole v Touchstone Leeds and Miller v University of Bristol. Watch this space…
Other cases of note in this area where Elizabeth McGlone has been instructed:
Omooba v Leicester Theatre Trust & Michael Garrett Associates
Bindel v Nottingham City Council
Dr Shahrar Ali v The Green Party of England & Wales
Pitt v Cambridgeshire City Council
Emma Bateman v The Green Party of England & Wales
Harassed and Victimised for supporting Women’s Rights
Challenging Bullying and Harassment in the Liberal Democrat Party
Help Sarah’s Legal Challenge to Secure Female Only Rape Crisis Therapy
Protect Single-Sex Facilities at Work
This blog was written by Elizabeth McGlone, Partner at didlaw.
