Higgs v Farmors School
Higgs v Farmor’s School [2025] EWCA Civ 109
Facts
Kristie Higgs, a Christian, was employed by Farmor’s School, a secondary school in Fairford, Gloucestershire, for six years, most recently as a pastoral administrator and work experience manager. In October 2018, a parent complained to the Head Teacher that Ms Higgs had expressed "homophobic and prejudiced views" on her personal Facebook page. The posts, made in her maiden name and without mentioning the school, included a call to "PLEASE READ THIS! THEY ARE BRAINWASHING OUR CHILDREN!" and criticised government policy on relationships and sex education in primary and secondary schools. They argued that children would be taught "that all relationships are equally valid and ‘normal’" and "that gender is a matter of choice, not biology". The re-posts contained particularly strong language, referring to "liberal school systems... indoctrination," "recruiting children for the transgender roster," a "devious scheme to supplant traditional gender roles," and promoting "mental illness".
The School conducted an investigation and disciplinary proceedings, during which Ms Higgs stated her posts were about what was happening at her son’s primary school and that she had no issues with gay, lesbian, or transgender people, and would not bring these views into school. She accepted some of her language was "not the best" but agreed with the content and would not have acted differently, nor had she removed the posts. The disciplinary panel found her guilty of gross misconduct, citing the "inflammatory and quite extreme" language, the potential for reputational damage to the school (even if none had occurred), and her lack of insight. She was summarily dismissed in January 2019. Ms Higgs then brought proceedings in the Employment Tribunal (ET) for direct discrimination and harassment on the ground of religion or belief, relying on beliefs such as the binary nature of gender, marriage being between one man and one woman, and opposition to certain sex education for primary children.
Held
Employment Tribunal (ET)
The ET dismissed Ms Higgs's claims, concluding that her dismissal was not because of her protected beliefs but rather because the School feared her posts might reasonably lead readers to conclude she was "homophobic and transphobic," which the School viewed as "wholly unacceptable views". The ET noted it was not concerned with whether the School's actions were "reasonable or not".
Employment Appeal Tribunal (EAT)
The EAT allowed Ms Higgs's appeal and remitted the case back to the ET. The EAT determined that the ET had erred by failing to conduct a proportionality assessment of the School's interference with Ms Higgs's right to manifest her beliefs, as required by the principles established in Page v NHS Trust Development Authority and Articles 9 and 10 of the European Convention on Human Rights (ECHR). The EAT found that there was a "sufficiently close or direct nexus" between her Facebook posts and her protected beliefs.
Court of Appeal (CA)
The CA allowed Ms Higgs's appeal against the EAT's decision to remit the dismissal claim, substituting a finding that her dismissal constituted unlawful direct discrimination on the ground of religion or belief.
The CA found that, even assuming the language of the re-posts could be considered objectionable, dismissal was an unquestionably disproportionate response.
It noted that the language, while offensive, was not "grossly offensive" and was not primarily intended to incite hatred, but rather to express derogatory sneers.
The language was not Ms Higgs's own (except for "brainwashing"), and she had made it clear she did not agree with the specific wording.
The reputational damage to the School was speculative, as the posts were on her personal account, in her maiden name, and did not refer to the School; only one person was known to have identified her.
There was no evidence that Ms Higgs's views would affect her work or her treatment of gay or trans pupils, and she had a six-year unblemished record.
The CA also commented that a lack of "insight" by an employee does not universally justify dismissal, particularly when it stems from a deeply-held belief and the conduct would not otherwise warrant dismissal.
While Ms Higgs's secondary complaint about the disciplinary process (suspension, investigation) was formally remitted to the ET, the CA strongly discouraged this course of action, deeming it disproportionate to the potential additional compensation.
Comment
The CA's judgment reinforces the principle that while the right to manifest a religious or philosophical belief is not absolute and can be limited, any such limitation, particularly in an employment context, must be objectively justified and proportionate. The case clarifies that direct discrimination claims related to the manifestation of belief can involve an objective justification test, aligning domestic law with Articles 9 and 10 of the ECHR.
Key takeaways from the CA's decision include:
An employer cannot dismiss an employee merely because they express a protected belief that the employer or third parties find offensive.
While an employer can object to conduct that is "gratuitously offensive" or causes justifiable reputational harm, the threshold for such offensiveness should be high, and the employer's response must be proportionate.
The context of the expression (e.g., personal social media account, no direct link to employer) is relevant when assessing reputational damage.
It is crucial to assess the objective meaning of the employee's words rather than relying on subjective inferences or stereotypes that third parties might wrongly draw. The CA indicated that the ET in the initial hearing erred by focusing on what the School felt people might reasonably perceive rather than objectively assessing the posts themselves.
The judgment highlights the delicate balance between protecting freedom of expression and an employer's legitimate interests, particularly regarding an employee's professional conduct and potential reputational impact.
