The Court of Appeal has handed down judgment in the case of Higgs v Farmor's School. The Court has found in favour of the Claimant.
Mrs Kristie Higgs, a former pastoral administrator and work experience manager at Farmor’s School, was dismissed following complaints about her Facebook posts. These posts expressed views on relationships education in schools, which were perceived by some as homophobic and transphobic. The posts included re-posted quotes, such as "the LBGT [sic] crowd with the assistance of the progressive school systems are destroying the minds of normal children by promoting mental illness". Mrs Higgs claimed that her dismissal constituted direct discrimination and harassment based on her religious beliefs.
The Employment Tribunal (ET) originally dismissed Mrs Higgs' claims of direct discrimination and harassment. It found that the school's actions were not because of her religious or philosophical beliefs but due to concerns that her posts could be perceived as homophobic and transphobic and thus could potentially damage the school's reputation. The ET concluded that the disciplinary process, including her dismissal, was motivated by the school's concern about the potential negative impact of her posts on pupils, parents, staff, and the wider community. The tribunal also determined that Mrs Higgs had no real expectation of privacy regarding her Facebook posts, which were accessible to a large audience.
Mrs Higgs appealed the decision to the Employment Appeal Tribunal (EAT), arguing that the tribunal failed to properly consider whether her Facebook posts were a manifestation of her protected beliefs and whether the school's actions were justified. The EAT allowed the appeal, finding that the ET did not adequately engage with the question of whether there was a close or direct nexus between Mrs Higgs' posts and her protected beliefs. The EAT emphasised the need for a proportionality assessment to determine if the school's actions were necessary for the protection of the rights and freedoms of others, under human rights law. The EAT remitted the case back to the ET for reconsideration.
Both parties appealed the EAT decision to the Court of Appeal (CA). It was heard in October 2024 and judgment was released on 12 February 2025. The CA concluded that the EAT was wrong in requiring the case to be remitted back to the ET, the EAT should have concluded that the decision to dismiss the Claimant constituted unlawful discrimination on the ground of religion or belief. However, the EAT was correct in concluding that if a dismissal is motivated by something objectionable in the way in which the manifestation of a religion or belief is expressed, the decision will be lawful only if the employer can show it was a proportionate response to the objectionable feature. In this case, the CA concluded that the decision to dismiss was disproportionate.
Robert Lewis, Partner in the Employment team at Mishcon de Reya, commented: "This is a really important judgment with profound implications for how employers, and educational institutions, should manage situations where an employee expresses personal opinions that might be considered objectionable. The Court of Appeal has confirmed that disciplinary action might be discriminatory unless an employer can justify their actions and demonstrate that they were proportionate. There are numerous areas where situations like this can arise, such as employees expressing themselves about sexual orientation, gender identity or political issues (such as the conflict in the Middle East). Employers, and educational institutions, should take early and careful legal advice if issues like this arise.
“In cases where the employee may have manifested a religious or philosophical belief, employers should give very careful consideration as to their reasons for taking any disciplinary action. This case is one of a long list of cases where an employer has relied on potential damage to its reputation in order to dismiss an employee without being able to demonstrate that they could, or have, suffered any actual reputational damage.
"I am concerned about how misinterpretations of this judgment might impact vulnerable minority groups. Some employees may wrongly feel they have carte blanche to express offensive opinions and employers may be reluctant to act. It remains as important as ever for employers to ensure that they prevent discrimination and unlawful harassment against their employees.
"The judgment will impact other cases currently making their way through the judicial process, such as the David Miller v University of Bristol case."