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Religion or belief discrimination: Supreme Court refuses permission to appeal in Higgs v Farmor’s School – where does this leave the law now?
The long-running case of Higgs v Farmor’s School appears to have come to an end, after the Supreme Court last month refused permission to appeal. This means that the current legal position is as set out in the Court of Appeal’s judgment in this case from earlier this year.
Direct religion/belief discrimination: Employers cannot treat employees less favourably because of their religion/belief or a manifestation of their beliefs unless, in the case of manifestation, the less favourable treatment has its root in how they have manifested their belief (rather than the belief itself), in which case the treatment will not be discriminatory provided it is proportionate and justified.
In Higgs, the Claimant was a secondary school counsellor and she was a Christian. She was sacked for gross misconduct following Facebook posts she had made criticising relationship education in primary schools. Her criticism focused on transgender issues. She claimed that her dismissal was discriminatory on grounds of her religious belief – both a lack of belief that someone could change their biological sex and a belief that marriage is an institution between a man and a woman.
The Court of Appeal held that Ms Higgs’s Facebook posts were a manifestation of her protected beliefs. The school’s decision to dismiss her in response was discriminatory. The school claimed she was dismissed not for manifesting her beliefs, but for the tone of her posts and reputational concerns. The Court of Appeal held that this position was not proportionate or justified. In particular, Ms Higgs had not expressed these views at work or discriminated against pupils.
The Court of Appeal reinforced principles from the Employment Appeal Tribunal (EAT):
- Individuals are entitled to manifest their beliefs, even if controversial or offensive to others.
- Employers can restrict manifestations if necessary to protect others’ rights and freedoms.
- Justification for such limitations depends on the case, requiring assessment of:
- Whether the employer had a good enough reason.
- Whether the employer took the least intrusive route to achieve its objective.
- Whether the objective outweighed the limitation of the employee’s rights.
To aid employers, the EAT outlined key factors to consider:
- Content and tone of the manifestation.
- Extent of the manifestation.
- Audience awareness—did the employee expect a wide or limited reach?
- Impact on others’ rights and the employer’s business.
- Representation – was it clear the views were personal, or could they be seen as the employers?
- Power imbalance – was there a risk of coercion, especially in positions of influence?
- Business nature – was there a risk to vulnerable groups?
- Intrusiveness of employer’s response – was the restriction proportionate?
Given the refusal of the school’s appeal, this judgment now stands as a clear statement of the current legal position. HR teams must ensure any restrictions on religious expression are justified and minimally intrusive. Employers should document clear, objective reasons if limiting religious manifestations to avoid claims of discrimination.