The Court of Appeal has delivered its judgment in the prominent case of Mrs Kristie Higgs v Farmor’s School, concerning a Christian school administrator who was dismissed after sharing gender-critical and anti-LGBT beliefs on social media. The ruling represents an important reference point for employers in relation to the rights of employees to express beliefs in accordance with their religion, including whether limitations on expression can be imposed by employers.
Case background
The Claimant, Mrs Higgs, was employed as a pastoral administrator at Farmor’s School, an academy trust state secondary school in Gloucestershire. Having worked for the school since 2012, she described herself as a Christian with a belief in the literal truth of the Bible. In October 2018, Mrs Higgs shared a post on Facebook about a government consultation on relationship education in primary schools, criticising proposals that “same sex marriage is exactly the same as traditional marriage, and that gender is a matter of choice”, adding the caption “THEY ARE BRAINWASHING OUR CHILDREN!”. The Claimant also re-posted content including the “LBGT [sic] crowd… are destroying the minds of normal children by promoting mental illness.” Shortly afterwards, the school received a complaint from a parent of one of the school’s pupils, criticising Mrs Higgs’ language as “homophobic and prejudiced”, and emphasising concern at the influence she may exert over vulnerable pupils in the school.
The school suspended the Claimant and conducted an internal investigation. After finding that there was a case to answer, a disciplinary hearing was convened in December 2018. When questioned about her use of language, Mrs Higgs confirmed her principal motivation for sharing the posts was her concern at the impact government policy might have on the curriculum in her son’s primary school, and she acknowledged the term “brainwashing” may not have been the best word to have used. She confirmed the posts accurately represented her beliefs, but stated she would not bring such views into the workplace, or treat people from the LGBT community differently.
The decision-making panel considered the language in the posts potentially offensive, and concluded that some readers may infer from the posts that she held discriminatory views, resulting in an unacceptable risk of reputational damage to the school. The panel decided the Claimant’s actions constituted gross misconduct, and she was summarily dismissed in January 2019.
Following her dismissal, Mrs Higgs issued a claim in the Employment Tribunal (ET) alleging discrimination and harassment based on her religious beliefs. Though she did not make a claim for unfair dismissal, the ET found such a claim may have been successful. The ET ruled in favour of the school in September 2020, and the Claimant appealed the judgment. The Employment Appeal Tribunal (EAT) overturned the ET’s ruling in March 2023, remitting the case to the ET for reconsideration. Mrs Higgs appealed the EAT judgment on the basis that her discrimination claim should have been successful, and her case was heard in the Court of Appeal (COA). The COA’s judgment has now been published, providing a useful insight into the assessment of belief-based discrimination claims.
Case Issues
The Court of Appeal confirmed that Mrs Higgs’ beliefs, including a lack of belief in “gender fluidity” and “same sex marriage”, directly related to her Christian faith and were therefore worthy of protection under the Equality Act. This right exists in parallel with the rights to freedom of religion and religious expression under the European Convention on Human Rights (ECHR) as enshrined in the Human Rights Act.
The freedom to hold religious beliefs is an unqualified right, while in contrast, the freedom to express religious beliefs is subject to such limitations as are “prescribed by law” and “necessary in a democratic society… or for the protection of the rights and freedoms of others”. The school’s dismissal of the Claimant limited her freedom to express her beliefs, and consequently had to be objectively justified in law.
Court of Appeal decision
The Court of Appeal assessed whether the dismissal was objectively justified in accordance with existing legal principles. The school’s objective of protecting its reputation was valid, and the dismissal rationally connected to the school’s aim. The key issue for the Court was to determine whether the impact of the dismissal on the Claimant was proportionate to the stated aim of protecting the school’s reputation.
The school’s decision was based on the way the Claimant expressed her beliefs and focused solely on the risk of reputational damage to the school, from the chance of her views being misinterpreted by third parties. In assessing Mrs Higgs’ social media posts, Judge Underhill LJ concluded that her language was “not grossly offensive” and merely an example of “stupidly rhetorical exaggeration… not likely to be taken literally”. The fact the content was copied from other sources also represented a mitigating factor in the Claimant’s favour.
In addition, there was no evidence the reputation of the school had been damaged, or that a real danger of damage existed. The Claimant made the Facebook posts using her personal account in her maiden name, with no reference to the school; even if readers of the posts associated her with the school, they would not believe that she represented the school’s views. The risk of reputational damage therefore only comprised a fear that readers may believe the Claimant would express discriminatory views in school. Even if some readers assumed that her views would result in her discriminating against others, the disciplinary panel did not believe she would let her views influence her work, and there had been no complaints about any aspect of her conduct during the six years she had worked at the school. In light of these factors, the COA ruled the school’s decision to dismiss Mrs Higgs was “unquestionably a disproportionate response” in the circumstances, and her dismissal was ultimately discriminatory.
Implications for Employers
The judgment represents an important lesson for employers. When an employer dismisses an employee for expressing a protected religious or philosophical belief contrary to the employer’s views, the dismissal will constitute unlawful discrimination. If the dismissal is motivated by the manner in which an employee expresses their belief, dismissal will only be lawful if it is objectively proportionate and justified in the circumstances. This remains a contentious area of employment law, with the potential for continuing disputes. It is therefore anticipated that this case will be appealed. If the case is appealed, guidance by the Supreme Court would certainly be welcome on the issue.
Employers should foster inclusive environments to reduce the risk of workplace conflicts and belief-related disputes. Employers are also advised to make it clear that any views employees express outside work, including on social media, have no bearing on the official views of the organisation, in order to ensure a clear separation between the over-arching organisational ethos and the personal views of employees.
For further advice and assistance in relation to the topics in this article please contact us to speak to a member of our employment team.
