Conflicting beliefs: Court of appeal ruling in Higgs v Farmor’s School

The Court of Appeal’s highly anticipated decision in Higgs v Farmor’s School has just been released.

Dealing with the issue of “competing workplace rights” and following a number of prominent judgments in this developing and contentious area. The case is one of a number that highlights the difficulties employers can face in striking the delicate balance between conflicting opinions. In particular, when staff choose to express those opinions online.

The facts of the case

Mrs Higgs was employed by Farmor’s School as an administrator. She posted criticism of the teaching of same-sex relationships and gender fluidity within schools. Her posts were made on a private Facebook page and in her maiden name. There was no obvious connection to her employer but one parent saw the posts and complained to the school. The posts were quite strong in their language (which the school referred to as “extreme and inflammatory”)- referring to ‘brainwashing, madness, devious scheme, child abuse and mental illness‘ and “the LGBTQ+ crowd”. However, 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, or that she intended to do so in the future.

On receipt of the complaint, the school suspended Mrs Higgs and she was later dismissed for gross misconduct. The school’s investigation found that her posts were a breach of their social media policy, that the content constituted harassment on the grounds of sexual orientation and/or gender reassignment and that the action could bring the school into disrepute.

Mrs Higgs brought claims before the Employment Tribunal claiming that she herself had been harassed and directly discriminated against on the grounds of her religion or belief (as provided for in the Equality Act 2010). Her beliefs were that gender fluidity does not exist; biological sex is immutable; and biblical teaching means that only a man and woman can be married.

The employment tribunal

At the first level, the Employment Tribunal (“ET”) acknowledged that Mrs Higgs’ beliefs were protected under the Equality Act 2010. However, it found that her dismissal was not due to her beliefs as such, but rather the manner of manifestation of her belief i.e. the language she used in her posts. The ET noted that whilst her beliefs protected her from discrimination, the right to offend others was not permitted. The ET deemed that her manner of expression could reasonably be perceived as homophobic and transphobic, justifying the school’s decision to dismiss her for gross misconduct.

The employment appeal tribunal

Mrs Higgs appealed the decision to the Employment Appeal Tribunal (“EAT”). The EAT upheld her appeal, finding that the original ET had failed to properly assess whether the school’s actions were related to the manifestation of her beliefs (not just the holding of those beliefs). The EAT emphasized the need for a proportionality assessment, balancing Mrs Higgs’ rights against the school’s legitimate concerns. The EAT remitted the claim to ET to be decided again but Mrs Higgs went to the Court of Appeal asking instead for the decision to be overturned and a judgment made in its place.