Manifestation of belief – Higgs v Farmor’s School

Blog

28 Feb

Written By Cherno Jagne

Introduction

1. On 12 February 2025 the Court of Appeal handed down judgment in Higgs v Farmor’s School.

Facts

2. Mrs Higgs had been employed by Farmor’s School for six years, latterly in two roles, as a pastoral administrator (with responsibility for overseeing students removed from class for disruptive behaviour) and as a work experience manager. She has two children, one of whom was a pupil at the School [1].

3. Mrs Higgs is a Christian. She believes in the literal truth of the Bible, that marriage is a divinely instituted life-long union between a man and a woman, and that she should witness to Biblical truth. She is opposed to relationship education for primary school children and does not believe that someone can change their biological sex [27].

4. Mrs Higgs had a private Facebook account in her maiden name. Nothing on her Facebook account linked her to the School.

5. On 24.10.2018 Mrs Higgs posted the text of an article critical of the government’s decision to introduce mandatory relationship education in primary schools. The article stated that “children will be taught that all relationships are equally valid and ‘normal,’ so that same sex marriage is exactly the same as traditional marriage, and that gender is a matter of choice, not biology…freedom of belief will be destroyed, with freedom of speech permitted only for those who tow the party line! We say again, this is a vicious form of totalitarianism aimed at suppressing Christianity…” Mrs Higgs added an introductory title (stating children were being brainwashed) and a request to sign a petition [10].

6. On 27.10.2018 Mrs Higgs reposted an article from a US website about two story books for primary school children which allegedly promoted ideas of gender fluidity [12].

7. One of Mrs Higgs’ Facebook ‘friends’ complained to the School that “a member of your staff who works directly with children has been posting homophobic and prejudiced views against the LGBT community on Facebook” [9]. The complainant attached screenshots of the posts.

8. On 30.10.2018 Mrs Higgs attended a meeting at the School about the posts. She accepted the posts might be considered offensive or prejudiced but stated she was not against and had no “issues” with gay, lesbian or transgender people. Rather, she was opposed to the government’s policy of relationship education for primary school children.

9. On 31.10.2018 the School suspended Mrs Higgs and initiated a disciplinary investigation into her alleged contraventions of its Code of Conduct, including communications which could amount to illegal discrimination, and serious inappropriate use of social media that could bring the School into disrepute and damage its reputation.

10. In one of the investigation meetings, Mrs Higgs was asked if the posts might compromise her position of trust working with children. She rejected this: “Students know me and I know gay students, I wouldn’t treat any of them any different. … I wouldn’t bring this into School” [16]. The School uncovered no evidence of Mrs Higgs expressing views about gender fluidity or same-sex marriage to pupils or staff or treating gay, lesbian or transgender pupils or staff differently [17]. Nonetheless the investigating officer found there was a case to answer on all allegations of misconduct.

11. Following a disciplinary hearing, the School summarily dismissed Mrs Higgs. She appealed, unsuccessfully, then brought a claim for direct religion or belief discrimination and harassment related to religion or belief, claiming that she had been dismissed because she had manifested her beliefs (as set out at §3 above) [26-28].

The tribunal

12. The tribunal dismissed the claims, finding that the School had dismissed Mrs Higgs because it had concluded that the language of her posts meant that a reader might “reasonably” conclude she held other beliefs – homophobic or transphobic beliefs – which the tribunal described as “wholly unacceptable” [98-105].[1]

The EAT

13. Mrs Higgs appealed to the EAT on multiple grounds. The EAT allowed her appeal, holding that the tribunal had failed to engage with the question of whether the School’s actions were because of or related to the manifestation of Mrs Higgs actual beliefs, a question which should not be answered through the prism of the employer’s views.

14. The EAT relied on Underhill LJ’s judgment, Page v NHS Trust Development Authority [2021] EWCA Civ 255, in which a claimant was dismissed because he publicly expressed “controversial views, derived from his Christian beliefs, about the morality of homosexual acts and about same-sex marriage and same-sex adoption,” and claimed direct and indirect discrimination because of his manifestation of belief [66].

15. The EAT remitted Mrs Higgs’ case for determination of two issues: (i) whether the School’s actions were because of or related to Mrs Higgs’ manifestation of protected beliefs or whether they were due to a justified objection to the manner of her manifestation and (ii) if the latter, whether the measures the School adopted were proportionate. The EAT held that the tribunal would need to address the four questions on objective justification identified in Bank Mellat v Her Majesty’s Treasury (no 2) [2013] UKSC 39, [2014] 1 AC 700 at [74] and at §94 of its judgment set out guidance from ECHR caselaw to assist the tribunal to answer these questions.

The Court of Appeal

16. Although Mrs Higgs had won her appeal to the EAT, she believed that the EAT should have gone further and should have held that her claim succeeded [6]. She therefore appealed to the Court of Appeal on four grounds and objected to the EAT’s order for remittal.

Grounds 1 and 2

17. Ground 1 was that the EAT was bound to conclude that the School’s interference with Mrs Higgs’ article 9 and 10 rights (freedom of belief and freedom of expression) was not justified. Ground 2 concerned the EAT’s alleged failure to provide guidance on remission that the European Convention on Human Rights protects the language and manner in which a belief is expressed [115].

18. Underhill LJ affirmed the principle established in Page: in cases in which the employer argues that its allegedly adverse treatment of the employee was not because the employee held a particular belief but instead because the employee expressed the belief in an objectionable manner, the employer may escape liability if it establishes its response is objectively justifiable [74; 108]. The burden of proving objective justification is on the employer [77].

19. Underhill LJ held that the tribunal would be bound to find that the School’s dismissal of Mrs Higgs was not objectively justified and that it constituted unlawful religion or belief discrimination [157] and consequently that the EAT was wrong to order remittal of the dismissal allegation [169].

Whether Mrs Higgs’ manifestation of beliefs was objectionable

20. As to whether Mrs Higgs’ manifestation of her beliefs was objectionable, Underhill LJ did not actually decide this, because, as explained further below, he found that the School’s response was not justifiable. Nonetheless, he expressed grave doubts. While the posts “unquestionably used offensive language” [167] the language was “not grossly offensive”. Describing people who promoted gender fluidity as “the LGBT crowd” was not primarily intended to incite hatred or disgust but was more of a “derogatory sneer” [159]. Other than Mrs Higgs’ use of the word “brainwashing” in the title of the first post, the language was not her own [160, 167]. Further, Mrs Higgs had stated that she did not agree with the language used, which was “relevant to the degree of any culpability” [160].

Whether the School’s response was proportionate

21. As to whether the School’s response was objectively justifiable, Underhill LJ held that even if he accepted Mrs Higgs manifestation of her beliefs was objectionable, the dismissal was “unquestionably a disproportionate response” [158] for the following reasons:

a. There was no evidence of reputational damage to the School, and the risk of Mrs Higgs’ views being widely circulated and therefore causing damage “was speculative at best,” because the posts had been made on her personal Facebook account, in her maiden name, with no reference to the School. Even by the time of the disciplinary hearing in late December 2018, only the complainant had recognised her connection to the School [161].

b. Mrs Higgs was a long-serving employee. There was no evidence that her views had influenced her work. Indeed, there had been no complaints at all about any aspect of her work since the start of her employment [162, 163].

c. Even if there had been complaints, it would have been open to the School to take the more proportionate step of issuing a statement that Mrs Higgs’ views would not affect her treatment of gay or trans pupils or parents [162].

d. While the disciplinary panel believed Mrs Higgs had no insight into her actions, there was “no universal rule” that an employee’s lack of insight justifies dismissal, especially if there is no evidence that the employee’s actions have caused damage [165-166].

22. Furthermore, although the School was entitled to investigate the complaint, it was “debatable whether that investigation needed to be disciplinary in character,” whether the investigating officer was justified in finding a case to answer, and whether it was necessary to suspend Mrs Higgs [167].

Grounds 3 and 4

23. Grounds 3 and 4 concerned other alleged failures of the EAT. Underhill LJ held it was unnecessary for him to decide these grounds. However, he helpfully set out some of the EHRC’s written submissions on the law concerning direct discrimination by stereotyping in the context of religion or belief, which he endorsed, albeit entirely obiter, as a correct summary of the law [171-163].

Implications

24. If an employer dismisses an employee merely because they have expressed a religious or protected belief to which the employer (or a third party with whom it wishes to protect its reputation) objects, that will constitute unlawful direct discrimination [175(i)].

25. If, in its defence, the employer argues its allegedly adverse treatment of an employee is not because the employee holds a protected belief but is because of how the employee has expressed the belief, the tribunal will need to decide whether the impugned conduct was a manifestation of belief, whether the manifestation was objectionable, and whether the employer’s response was objectively justifiable.

26. The question of whether an employee’s conduct is actually a manifestation of belief is to be answered by applying the test laid down in Eweida v UK [2013] 57 EHRR 8 at [82]: is there a sufficiently close and direct nexus between the belief and the act. The question of whether the manifestation is objectionable requires consideration of the circumstances in which it occurs, the meaning of the words, the forum and context for what is said or done, the content and the manner [74(ii); 179-181].

27. The question of whether the employer’s response is objectively justifiable is to be answered by reference to the EAT’s guidance (set out below) which Underhill LJ endorsed [112-113]. The burden is on the employer to prove that its response – its interference with the employee’s qualified right to express their belief or to freedom of expression – is proportionate [77].

“95(5) In answering those questions, within the context of a relationship of employment, the considerations identified by [the Archbishops’ Council] are likely to be relevant, such that regard should be had to: (i) the content of the manifestation; (ii) the tone used; (iii) the extent of the manifestation; (iv) the worker’s understanding of the likely audience; (v) the extent and nature of the intrusion on the rights of others, and any consequential impact on the employer’s ability to run its business; (vi) whether the worker has made clear that the views expressed are personal, or whether they might be seen as representing the views of the employer, and whether that might present a reputational risk; (vii) whether there is a potential power imbalance given the nature of the worker’s position or role and that of those whose rights are intruded upon; (viii) the nature of the employer’s business, in particular where there is a potential impact on vulnerable service users or clients; (ix) whether the limitation imposed is the least intrusive measure open to the employer.”

28. Having considered Underhill LJ’s obiter comments about the School’s response to the complaint in Higgs [167], it is suggested that when an employer investigates a complaint about an employee’s manifestation of a belief, it should not necessarily initiate a formal disciplinary investigation; it should give some thought as to whether an informal approach might be appropriate, at least initially. Nor should the employer necessarily suspend the employee during the investigation. Suspension may result in the employee feeling demoralised and excluded. Indeed, a policy of always suspending when investigating certain complaints could constitute a breach of the implied term of trust and confidence: Crawford v Suffolk Mental Health Partnership NHS Trust [2012] EWCA Civ 138 at [71]; Gogay v Herfordshire County Council [2000] IRLR 703 at [58-59]. The employer should strive to assess the evidence in the round, dispassionately, avoiding assumptions based on stereotypes.

Christopher Milson (led by Sean Jones KC) appeared for the Respondent

Sarah Fraser Butlin KC appeared for the First Intervenor, The Archbishops’ Council of the Church of England

Akua Reindorf KC appeared for the Fourth Intervenor, Sex Matters

References

Higgs v Farmor’s School [2025] EWCA Civ 109

Higgs v Farmor’s School [2023] EAT 89

Page v NHS Trust Development Authority [2021] EWCA Civ 255

Eweida v UK [2013] 57 EHRR 8

Crawford v Suffolk Mental Health Partnership NHS Trust [2012] EWCA Civ 138

Gogay v Herfordshire County Council [2000] IRLR 703

[1] The relevant tribunal judgment paragraphs are 60-61, 63, 70-71.

Written by Cloisters’ Helena Ifeka