Higgs v Farmor’s School case: key takeaways and tips for employers

A long awaited, landmark decision has been made in the case of Higgs v Farmor’s School which provides guidance on how the law on discrimination treats the expression of controversial philosophical and religious beliefs. 

This article provides a summary of the case, the appeal and the outcome, as well as setting out five tips for employers to take away in light of the Court of Appeal’s judgment.

Background of the Higgs v Farmor’s School case

The claimant, Mrs Higgs, was a pastoral administrator and work experience manager at Farmor’s School. Higgs shared posts on social media that mentioned 'brainwashing' children stating that the government’s stance on the teaching of relationships and sex education in schools meant that children 'will be taught that all relationships are equally valid and ‘normal’' and that 'gender is a matter of choice, not biology'. A parent flagged these posts to the headteacher of the school, complaining that they expressed 'homophobic and prejudiced views'.  

The school investigated the posts under a disciplinary process. Mrs Higgs said that the posts arose out of concerns about what was happening in her child’s primary school, not Farmor’s School. Mrs Higgs was dismissed for gross misconduct due to a risk of reputational damage to the school.

She subsequently raised complaints in the Employment Tribunal of direct discrimination and harassment on the grounds of a number of beliefs, including a lack of belief that a person can change their biological sex and a lack of belief in same-sex marriage. 

These claims were initially dismissed at Bristol Employment Tribunal: 

On appeal to the Employment Appeal Tribunal (the EAT), the EAT found that the Employment Tribunal had erred in rejecting her direct discrimination claim and referred it back to the Employment Tribunal to carry out a proportionality assessment of the school’s decision to dismiss. However, the claimant felt that the EAT should have gone further and upheld her claim so she appealed again to the Court of Appeal.

The Court of Appeal judgment

The Court of Appeal concluded that the decision to dismiss Mrs Higgs was discriminatory because of her beliefs. This decision was based on the fact that dismissal was disproportionate. Freedom of speech entails being able to express opinions that may shock and offend. While Higgs said that she would not have acted any differently, crucially, the school did not rely on the fact that she would express those views or exhibit prejudice against LGBTQ+ people in the work environment but rather they focussed on the reputational damage to them. In considering proportionality, the Court of Appeal weighed up factors such as the audience, content and tone of the posts, the nature of the employer’s business and the potential to cause reputational damage.

The Court of Appeal was 'prepared to assume, without deciding, that the School was entitled to take objection to the posts…that their language was gratuitously offensive…and it was relevant to the Claimant’s work'. Nevertheless, the Court of Appeal concluded that the dismissal was 'unquestionably a disproportionate response' because:

1. The language was not grossly offensive in the circumstances and didn’t appear to be intended to incite hatred for gay or trans people. It was considered relevant that some of the comments were 'stupidly rhetorical exaggeration' and were therefore not likely to be taken literally.
2. The language was not the claimant’s own – some were re-posts of social media posts from the US. She also stated that she didn’t agree with all of  the language used, such as 'brainwashing', 'delusional thinking' and 'psychotic thinking'. The Court of Appeal found this to be a relevant factor.
3. There was no evidence that the reputation of the school had been damaged. The Court of Appeal found that 'the risk of widespread circulation was speculative at best'. There was also no suggestion that readers of the posts would believe they represented the school’s own views. The claimant had posted them from a personal account with her maiden name and only one parent had recognised her.
4. The Court of Appeal accepted that Mrs Higgs would not let her views influence her work. She had never displayed discriminatory attitudes to pupils or expressed her views in the workplace. It was noted that the suggestion that she may do so was not explored in the dismissal letter – there had been no complaints about her work for the whole six years she had worked at the respondent. 

It's clear that the forum and context for what is said is relevant, as well as the content and manner. The Court of Appeal noted that 'something that might be unproblematic on a private Facebook page could justify different treatment if communicated in a work setting'.

As such, the outcome of this case is fact specific, albeit that the principles set out are wide-reaching. It's certainly possible that, had Mrs Higgs shared the same content at work or on a work social media account, the outcome could have been very different.

But the Court of Appeal’s focus here was on proportionality – did the decision to dismiss go too far?   

The Court of Appeal certainly confirmed that the school 'was entitled to carry out an investigation of some kind in response to the complaint' and, indeed, that it would have been irresponsible not to. However, the conclusion reached was that, in the context and circumstances of this case, dismissal was simply disproportionate.

Analysis

So why is this considered such a landmark case? Well, this is because of its impact on direct discrimination law.  

The general approach to direct discrimination is that it cannot be justified. However, in this case, it was stressed that, unlike the holding of a belief, the manifestation of that belief 'is outward-facing and for that reason…may require to be limited so as to take account of other interests'.  But what does that mean? It remains the case that dismissing an employee just because they hold or have expressed a protected belief that the employer objects to will be unlawful.

However, dismissing an employee because of something 'objectionable' about how the belief was expressed, is potentially justified and lawful if the employer can show that 'it was a proportionate response to the objectionable feature'. 

This means that religion and belief cases require a different approach to other protected characteristics.

Tips for employers when considering matters relating to religious or philosophical beliefs

Conduct a fair and nuanced investigation - ensure any disciplinary investigation into an employee’s expression of beliefs focuses on the manner and context of expression - not simply the fact that a belief was expressed. Avoid jumping to conclusions based on public reaction or reputational concerns alone.

• Disciplinary decisions must not be based solely on vague or unsubstantiated concerns about reputational damage. Consider whether there is actual evidence that reputation has been damaged or will be damaged.
• Ensure that decision-makers in a disciplinary process are genuinely impartial. In the Higgs v Farmor’s School case, the court noted the importance of not predetermining that a protected belief is unacceptable simply because it has provoked complaints.
• Document how decisions were made, including how competing rights and proportionality were assessed. This will be essential in defending any claim and showing that the employer took a balanced and lawful approach.
• Factors that may make disciplinary action more likely to be objectively justified include:
  
  • The objectionable comment or behaviour occurred in the workplace rather than in a personal or private capacity, such as on personal social media.
  • There is clear evidence, or a heightened risk, of reputational harm to the employer, rather than mere speculation.
  • The views expressed pose a genuine risk of influencing the employee’s conduct at work or their interactions with colleagues, service users, or others.
  • There is evidence that the employee has previously demonstrated behaviour that raises concern - for example, towards colleagues from minoritised or vulnerable groups.
  • The employee shows little insight into the potential impact of their actions, for example refusal to remove or reflect on posts known to have caused offence, leading to concerns about their ability or willingness to prevent future inappropriate conduct.

Employers should be careful about relying too heavily on the last point above. The Court of Appeal stressed that whilst it was understandable why an employer would want to have confidence that the employee appreciates and acknowledges what they did wrong, to avoid repeated behaviour, 'if the case is not one that would otherwise justify dismissal, it is hard that it should be marked up in seriousness because of a failure to make an acknowledgment of fault which the employee would genuinely find difficult'. 

Conclusion

Employers should not look at this case and think that this gives employees carte blanche to express offensive views. Employers are still required to take action to prevent harassment in the workplace. Employers should still be emphasising an inclusive workplace and the need for respect and appropriate behaviour in the workplace. However, there will be a need for caution in taking disciplinary action in relation to personal views expressed by employees in purely personal forums. It doesn’t mean you never can, but context will be important and a proportionate response will be required.  

For further information and advice please contact our employment team.