Court of Appeal finds Mrs Higgs’ dismissal was discriminatory! Higgs -v- Farmor’s School and Ors [2025] EWCA Civ 109

Last month we discussed the top employment law cases to keep an eye out for in 2025, one of which was Higgs -v- Farmor’s School and Ors [2025] EWCA Civ 109. Since then, the Court of Appeal has finally handed down its highly anticipated Judgment in this matter.

Background facts

Mrs Higgs was dismissed by Farmor’s School (“the School”) following a number of complaints being made about one of her Facebook posts concerning the teaching about same sex marriage in schools. The School’s main concern was that her posts could potentially negatively impact pupils, parents, staff or the wider community. Mrs Higgs brought a claim on the basis that she had been discriminated against because she had manifested her religious beliefs as a Christian.

Employment Tribunal’s decision

The Employment Tribunal (“ET”) held that the dismissal by the School had been due to its concerns that someone reading Mrs Higgs’ posts could reasonably consider that she held homophobic and transphobic views, and the dismissal was therefore not because of or related to her religious beliefs. She then appealed to the Employment Appeal Tribunal (“EAT”).

Employment Appeal Tribunal’s decision

The EAT found that the ET had not properly considered whether there was a close link between her religious beliefs as a Christian, and her social media posts. They also ruled that in determining the reason why the School had acted the way it had, the ET had been required to assess whether those actions were prescribed by law and were necessary for the protection of the rights and freedoms of others, while at the same time, considering Mrs Higgs’ rights under Article 9 (right to freedom of thought, belief and religion) and Article 10 (right to free speech) of the European Convention of Human Rights.

The importance of carrying out this proportionality assessment was to determine whether the School’s actions were because of, or related to, the manifestation of Mrs Higgs’ religious beliefs, or were due to a justified objection to the manner in which she manifested that belief

The EAT remitted the case back to the ET for re-hearing on the issue. However, Mrs Higgs appealed to the Court of Appeal stating that judgment should be given in her favour without remitting the matter back to the ET.

Court of Appeal Judgment

The Court of Appeal (“CoA”) heard Mrs Higgs’ appeal in October 2024 and a Judgment was finally handed down on 12 February 2025.

The CoA allowed Mrs Higgs’ appeal against the EAT’s decision to remit the matter back to the ET on the issue of whether her dismissal was unlawfully discriminatory and substituted the issue for a finding that it was.

Commenting that the Judgment was “regrettably long and long-delayed,” Lord Justice Underhill provided a very useful summary to “assist non-lawyers or skim-readers.” He summarised the CoA’s conclusions as follows which can be found at paragraph 175:

(1) “The dismissal of an employee merely because they have expressed a religious or other protected belief to which the employer, or a third party with whom it wishes to protect its reputation, objects will constitute unlawful direct discrimination within the meaning of the Equality Act.

(2) However, if the dismissal is motivated not simply by the expression of the belief itself (or third parties’ reaction to it) but by something objectionable in the way in which it was expressed, determined objectively, then the effect of the decision in Page v NHS Trust Development Authority is that the dismissal will be lawful if, but only if, the employer shows that it was a proportionate response to the objectionable feature – in short, that it was objectively justified.

(3) Although point (2) modifies the usual approach under the Equality Act so as to conform with that required by the European Convention of Human Rights, that “blending” is jurisprudentially legitimate.

(4) In the present case the Claimant, who was employed in a secondary school, had posted messages, mostly quoted from other sources, objecting to Government policy on sex education in primary schools because of its promotion of “gender fluidity” and its equation of same-sex marriage with marriage between a man and a woman. It was not in dispute, following the earlier decision of the EAT in Forstater v GCD Europe, that the Claimant’s beliefs that gender is binary and that same-sex marriage cannot be equated with marriage between a man and a woman are protected by the Equality Act.

(5) The school sought to justify her dismissal on the basis that the posts in question were intemperately expressed and included insulting references to the promoters of gender fluidity and “the LGBT crowd” which were liable to damage the school’s reputation in the community: the posts had been reported by one parent and might be seen by others. However, neither the language of the posts nor the risk of reputational damage were capable of justifying the Claimant’s dismissal in circumstances where she had not said anything of the kind at work or displayed any discriminatory attitudes in her treatment of pupils.

Agreeing with Lord Justice Underhill’s Judgment, Lord Justice Falk added “it is necessary in this context to judge a statement by what it actually says, and not by reference to a concern about what some readers might wrongly read into or infer from it…In other words, what meaning do the words used actually have? What message would they convey to a reasonable reader? In the event of a dispute, this will be a matter that the tribunal must decide for itself.”

Implications

The COA’s decision makes it clear that employers need to be very careful before taking action to dismiss someone because of controversial comments made on social media platforms. They need to consider what the statement actually means, what message would it convey to the reasonable reader and whether it impacts that staff member’s suitability to do their job.

An employer cannot dismiss an employee for making a controversial statement solely for the reason that they think it would cause them reputational damage or based on what they think some readers might infer from the message. That is not enough. There was no evidence in this case that there was any actual damage caused to the School’s reputation, it was merely speculative. The CoA’s findings also show that even where an employee’s comments or social media posts are clearly offensive, that may not be enough for an employer to rely on in dismissing an employee stating that it was because of the objectionable manner in which they manifested their belief. That is because the CoA found that while some of the language used by Mrs Higgs was offensive, they were not “grossly offensive” which would suggest that the bar has been set quite high. The CoA reaffirmed the well-established principles that the right to free speech “necessarily entails the freedom to express opinions that may shock and offend”. The CoA further made clear that, “An employer does not have carte blanche to interfere with an employee’s right to express their beliefs simply because third parties find those beliefs offensive”.

The decision in this case is welcomed news for Rahman Lowe Solicitors, whose landmark outcome in the Anti-Zionist claim by Prof. David Miller is due to be heard at the EAT in November 2025. The University of Bristol who appealed the judgment, are relying on Higgs being wrongly decided at the EAT as part of their appeal, amongst other matters.

For further information or to discuss a potential employment law or discrimination claim, please contact our specialist employment solicitors on 0207 3950 5234 or info@rllaw.co.uk. We are ranked as a ‘Leading Firm’ in the Legal 500 and Chambers and Partners independent guides to the UK Legal Profession.

28 February 2025.