Mrs Higgs, a practising Christian, was employed by Farmor’s School as a pastoral administrator and work experience manager. In these roles, she interacted with secondary school pupils and their parents.
The school’s head teacher received a complaint from a parent regarding a Facebook post shared by Mrs Higgs. The post that was shared criticised the inclusion of same-sex relationships, same-sex marriage, and gender identity as a matter of personal choice in school curriculum. The parent expressed concern that the post reflected homophobic and prejudiced views towards the LGBT community.
Mrs Higgs was suspended and denied holding homophobic or transphobic beliefs. After an internal investigation and disciplinary hearing, she was dismissed for gross misconduct. The disciplinary panel concluded that her social media activity breached the school’s code of conduct. It determined that the offensive nature of the posts, particularly the “inflammatory and quite extreme” language, constituted discrimination in the form of harassment and posed a potential risk to the school’s reputation. Her appeal against the dismissal was unsuccessful.
Mrs Higgs brought claims before the employment tribunal alleging direct discrimination and harassment on the grounds of religion or belief. She argued that she had been mistreated due her beliefs which included the following amongst other beliefs:
- A lack of belief in gender fluidity;
- A belief that a person cannot change their biological sex or gender;
- A lack of belief in same-sex marriage, which she viewed as contrary to Biblical teachings.
The employment tribunal accepted that these beliefs were protected under the Equality Act 2010 (EqA 2010). However, it concluded that Mrs Higgs had not been directly discriminated against or harassed because of those beliefs. Instead, it found that her disciplinary action and dismissal stemmed from the “florid and provocative language” used in her Facebook posts, which could reasonably be interpreted as expressing homophobic and transphobic views, views not protected under the EqA 2010.
The EAT allowed Mrs Higgs’ appeal, finding that the tribunal had failed to properly consider whether the school’s actions were taken because of her beliefs or because of how she manifested them. The EAT held that the tribunal should have assessed whether there was a sufficiently close connection between her protected beliefs and the content of her Facebook posts. As a result, the case was remitted to the tribunal for reconsideration.
The claim reached the Court of Appeal. It substituted a finding that Mrs Higgs’ dismissal amounted to unlawful direct discrimination based on religion or belief.
The Court held that dismissing an employee solely for expressing a religious or protected belief, where the employer, or a third party whose opinion the employer seeks to manage, finds that belief objectionable, constitutes unlawful direct discrimination. Where the dismissal is instead prompted by the manner in which the belief is expressed, it can only be lawful if the employer demonstrates that the response was proportionate and objectively justified.
While Mrs Higgs had shown little insight into the potential offensiveness of her posts or taken them down, the Court held this was not determinative. Employees may understandably resist admitting fault when expressing deeply held beliefs, unless the employer’s need for assurance is critical to preventing future harm, which was not the case here.
The Court clarified that employers cannot interfere with an employee’s rights to belief and expression simply because others find those beliefs offensive. However, employers may impose restrictions where the employment relationship justifies it. Even then, any restriction must be proportionate.
Three factors may guide the proportionality assessment:
- Relevance to Employer’s Work: Beliefs expressed about topics unrelated to the employer are less likely to cause reputational harm.
- Manner of Expression: While protected beliefs expressed offensively may harm reputation, the standard for offensiveness should be high.
- Attribution to Employer: If it is clear the employee is speaking personally, the risk to the employer’s reputation is reduced.
In Mrs Higgs’ case, although there was a link between the posts and her job due to the topic of sex education, the posts were shared from her personal account under her maiden name, with no reference to the school. While reputational risk cannot be ruled out due to the public nature of social media, the potential harm was minimal and speculative.
