The significance of the ruling in Higgs v Farmor’s School

At a time when reactionary views seem to be in the ascendant, at least on the other side of the Atlantic, it is tempting to view the Court of Appeal’s decision in Higgs v Farmor’s School on 12 February 2025 as another feather in the cap of the ‘anti-woke’ movement. In truth, it is no such thing, but it does remind employers that freedom of speech and freedom of religious expression (Articles 10 and 9 of the European Convention on Human Rights (‘the Convention’) should not lightly be interfered with.

The background

Mrs Higgs worked as a pastoral assistant in a secondary school. She held various beliefs which were not mainstream, but which, in these proceedings, were recognised as protected under the Equality Act 2010. These included that marriage is a divinely instituted lifelong union between one man and one woman, a lack of belief in ‘gender fluidity’, a lack of belief that someone could change their biological sex or gender, a belief that same sex marriage is contrary to Biblical teaching, that sex education should not be given to primary school children and a belief in the literal truth of the Bible, including creation. Her posts and re-posts on Facebook attracted a complaint to the school. Mrs Higgs was disciplined and, ultimately, dismissed.

Her complaint that her dismissal had been direct religious discrimination was considered by the Court of Appeal after formal interventions by the Archbishops’ Council of the Church of England, the Free Speech Union Ltd, the Association of Christian Teachers, Sex Matters and the Equality and Human Rights Commission.

The issues

The right to hold a religious belief is absolute. The right to manifest it, like the right to freedom of expression, is qualified. In other words, the Convention recognises that the manifestation of religion or belief by one person may have an impact on others. It, therefore, stipulates that any interference with an individual’s freedom to manifest religion or belief must be prescribed by law and be necessary in a democratic society in pursuit of one or more of the legitimate aims set out in the Convention. 

In Page v NHS Trust Development Authority, the Court of Appeal decided that adverse treatment in response to an employee’s manifestation of their belief was not to be treated as having occurred ‘because of’ that manifestation (so as to constitute direct religious discrimination under section 13(1) of the Equality Act), if it constituted an objectively justifiable response to something ‘objectionable’ in the way in which the belief was manifested. It, thus, introduced a requirement of objective justification into the causation element in section 13(1). The Court of Appeal also held in that case that the test of objective justification was not substantially different from that required under article 9.2 (and also article 10.2) of the Convention.

Mrs Higgs’s Facebook posts protested against the introduction of mandatory sex education in primary schools and expressed fears about the likely content of such teaching. She was not against gay, lesbian or transgender people and told the school’s investigation that she did not think her posts would compromise her position of trust in working with children, some of whom might be transgender: “Students know me and I know gay students, I wouldn’t treat any of them any different. […] I wouldn’t bring this into school.” There was no evidence that Mrs Higgs had ever expressed her views about gender fluidity or same-sex marriage to pupils or staff in the school or treated gay, lesbian or transgender pupils or staff differently. She accepted that she might not herself have used some of the language in the re-posts, specifically, ‘brainwashing, delusional thinking and psychotic thinking’, but declined to take them down and defended her right to express her beliefs on her personal Facebook page (which did not indicate any connection with the school).

The ruling

Underhill LJ (who also gave the leading judgement in Page, an unsuccessful discrimination claim) gave several reasons why Mrs Higgs’ dismissal was “unquestionably a disproportionate response”. Even if the language of the reposts passed the threshold of objectionability, it was not grossly offensive. There was no evidence that the reputation of the school had been damaged, but merely a concern that it might be in the future. Neither the disciplinary panel nor the Employment Tribunal, which heard the evidence, believed that Mrs Higgs would let her views influence her work.