Higgs v Farmor's School

Mrs Kristie Higgs, a Christian, had been employed by Farmor’s School as a pastoral assistant and work experience manager for six years. On 26 October 2018, a parent at the school emailed the headteacher complaining that Mrs Higgs had expressed “homophobic and prejudiced views” on her Facebook page. Disciplinary charges were then brought against her and, by letter dated 7 January 2019, she was summarily dismissed for gross misconduct.

The school argued that her conduct posed a reputational risk, while Mrs Higgs claimed that she was discriminated against and harassed for her beliefs, including: a lack of belief in gender fluidity; a lack of belief that someone could change their biological sex/gender; belief in marriage as a divinely instituted union between one man and one woman; lack of belief in ‘same sex marriage’; and opposition to sex and/or relationship education for primary school children.

The Employment Tribunal dismissed the claim, stating that Mrs Higgs’ dismissal was not because of her protected beliefs about gender and same-sex marriage but because the school feared that the way in which she had expressed those beliefs would be perceived as showing that she had homophobic and transphobic views.

The Employment Appeal Tribunal allowed Mrs Higgs’ appeal and remitted the case back to the Employment Tribunal. Mrs Higgs appealed to the Court of Appeal, stating that the claim should not have been remitted to the Employment Tribunal because “the EAT was bound in law to reach its own conclusion and allow the Claimant’s claim for direct discrimination”.

The Court of Appeal allowed Mrs Higgs’ appeal. The Court held that the dismissal of 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 will constitute unlawful direct discrimination under the Equality Act.

While the school sought to justify Mrs Higgs’ dismissal on the basis that her social media posts were liable to damage the school’s reputation in the community, the risk of reputational damage was not capable of justifying her dismissal in circumstances where she had not expressed those views at work or displayed any discriminatory attitudes towards pupils.