Balancing the Equality Act: Lessons from Higgs v Farmor’s School

The Court of Appeal have today issued a judgment in the Kristie Higgs v Farmor’s School case, in which it has ruled that the actions of the school in dismissing Ms Higgs for expressing LGBT+ critical posts on her personal Facebook account, was unlawful discrimination on the grounds of religion or belief.

This case will have significant implications in the current debate concerning the balancing act of the protections under the Equality Act 2010, which continues to be a source of contention following the Forstater v CDG decision in 2021. Higgs’ case has considered the balance between the freedom to express religious or ideological beliefs versus the protection against critical or discriminatory statements relating to a protected characteristic.

This case also highlights the issues employers are faced with when considering statements expressed on personal social media, and how this should be viewed when considering a workplace dispute.

Background of the Case

• Kristie Higgs was a pastoral administrator and work experience manager at Farmor’s School in Gloucestershire. She was dismissed in 2019 after sharing posts on her personal Facebook (held in her maiden name) which expressed beliefs that gender is binary and not ‘fluid’ (often labelled as ‘gender-critical’) and views critical of LGBT+ relationships and sex education in schools.
• A complaint was brought by a parent at the school that these posts were ‘homophobic and prejudiced’. Following a disciplinary process, Ms Higgs was dismissed for gross misconduct. Ms Higgs then brought a claim that her dismissal was discriminatory on the grounds of religion and belief under the Equality Act 2010.
• After successfully appealing the initial Employment Tribunal judgment, the case was remitted to an employment tribunal to determine the lawfulness of her dismissal. Ms Higgs appealed this decision on the basis that the EAT should have made a decision that the dismissal was unlawful on its own without remittal to the Employment Tribunal.
• In today’s judgment, the Court of Appeal have ruled that the decision to remit the case was unnecessary, and that the dismissal was unlawfully discriminatory.

Protected Beliefs – The Equality Act

• The Equality Act 2010 protects individuals from discrimination based on religion or belief, which includes both religious and philosophical beliefs. Following the decision in Forstater, where ‘gender-critical’ views were found to be philosophical beliefs protected by the Equality Act, it was not a point of dispute in this case if Ms Higgs views were protected. The school accepted that these were protected beliefs.
• Rather, the issue in dispute here was whether in expressing these beliefs, Ms Higgs’ conduct was such that the employer could justifiably object to the way in which this belief was expressed, and if so, whether it was a proportionate response to dismiss Ms Higgs. The school sought to justify the dismissal on the basis that the posts were offensively expressed and were liable to damage the reputation of the school in the community.
• In ruling on this case the Court of Appeal highlighted several key legal principles that employers should be wary of in similar circumstances:

1. Expression of Beliefs: The Court noted that dismissing an employee for expressing protected beliefs to which the employer objects, or to which they fear reputational reprisal, will be an act of unlawful direct discrimination under the Equality Act.
2. Objective Justification: The Court stated that a dismissal would be lawful only if the decision was made because of something justifiably objectional about the way in which the belief was expressed, not just because of the expression of the belief itself (even if that belief offends other people).
3. Proportionality: The decision to dismiss must also be a proportionate response to the objectional feature – in short it must be objectively justified.

The decision of the Court of Appeal focused on whether the dismissal was proportional in response to the expression of beliefs. Key considerations that led to the decision to dismiss being an unproportional and therefore discriminatory, were:

1. That there was no reason to suppose that the Claimant had expressed her views at school or treated pupils any differently
2. That whilst the language was rhetorical and provocative, it did not express hatred or disgust for gay or trans people.
3. That the risk to the school’s reputation was slight given Ms Higgs’ small Facebook following.

Implications for Employers

• The Higgs v Farmor’s School decision underscores the need for employers to carefully navigate the balance between respecting employees’ rights to hold and express their religious or philosophical beliefs (including “gender critical” beliefs) and protecting and promoting diversity and inclusion.
• It also raises points regarding the use of social media, and how employers need to manage social media complaints and reputational risks along with how much weight they can lawfully place on these risks when considering a disciplinary sanction (though each case will turn on its own facts).

In light of this judgment and the potential implications, we are encouraging employers to review their social media policies and training, as well as training for managers on diversity, inclusion, and how different and sometimes opposing or conflicting beliefs may be equally protected in law. If you would like guidance or training on these issues, please reach out to our employment team who would be happy to help.