Hello  and welcome back to this week’s case. Last week we looked at Di Maria v Met Police and others. This week, we look at the significant case of Higgs v Farmor’s School concerning the boundaries of religious expression, discrimination, and employment rights.

Background

The Claimant worked as a pastoral administrator and work experience manager at Farmor’s School. In 2018, she was dismissed after a parent anonymously complained about Facebook posts she had shared, which criticised government policies on sex education, particularly regarding gender identity and same-sex marriage. The Claimant’s posts, were made under a private account using a pseudonym, expressed strong opposition to “gender fluidity” being taught in primary schools.

Following the complaint, the school initiated an internal investigation, concluding that her posts could be perceived as homophobic and transphobic. As a result, Higgs was dismissed. She brought claims for unfair dismissal, wrongful dismissal, and discrimination based on religious belief under the Equality Act 2010.

The unfair and wrongful dismissal claims were dismissed as time-barred, leaving only the direct discrimination and harassment claims to be decided.

Employment Tribunal (ET) Decision

The Employment Tribunal (ET) ruled against the Claimant, stating that her dismissal was not due to her religious beliefs, but rather the manner in which she expressed them. The Tribunal emphasised that the school’s decision was based on the perceived impact of her posts on the school community rather than her protected beliefs. It affirmed that there was no unlawful discrimination.

Employment Appeal Tribunal (EAT) Decision

On appeal, the EAT found that the ET had made legal errors in its reasoning. The EAT ruled that the ET failed to properly analyse the distinction between whether the Claimant was dismissed for the way she expressed her beliefs, rather than for the beliefs themselves.

Secondly, the ET did not adequately consider Article 9 and Article 10 of the European Convention on Human Rights (ECHR), which protect freedom of thought, conscience, religion, and expression.

Lastly, the ET did not assess whether the dismissal was objectively justified, given that it involved the restriction of a fundamental right.

The EAT remitted the case back to the ET to reconsider whether the Claimant’s dismissal was proportionate and justified.

Employment Appeal Tribunal (EAT) Decision

The Claimant further appealed to the Court of Appeal, arguing that the EAT should have made a final decision in her favour rather than remitting the case back to the ET. The Court of Appeal agreed, ruling that the Claimant had been unlawfully discriminated against.

Outcome

The Court of Appeal granted the Claimant’s appeal and substituted a finding that she had been unlawfully discriminated against. The ruling clarified that while employers can act against employees whose conduct is inappropriate, they cannot dismiss someone simply for expressing their religious beliefs, particularly outside the workplace.

Takeaway Points

The decision affirms that religious and philosophical beliefs, including opposition to gender fluidity and same-sex marriage, are protected by the Equality Act 2010. Employees cannot be penalised simply for holding or expressing these beliefs, unless their conduct crosses the threshold of inappropriate conduct.

While beliefs are protected, the way in which they are expressed matters. If an employee expresses their beliefs in an offensive or inappropriate manner, their employer may take action, but this must be objectively justified.

Employers cannot impose disciplinary action based solely on third-party complaints or potential reputational harm. The risk that someone may find a statement offensive does not override the freedom of expression, unless the content itself is objectively inappropriate. It is important to determine whether disciplinary action is justified. Expressing beliefs privately (e.g. on a personal social media account) is different from imposing them in the workplace.

Employers must ensure that any disciplinary actions affecting freedom of belief or expression are proportionate. Dismissing an employee for expressing a widely acknowledged and legally protected belief is unlikely to be justified.

If you or someone you know are dealing with a similar issue, please contact us for further assistance.