Authored By: Liv Hesson
University of York
Issue
The claimant, Kirsty Higgs, was employed as an administrator at Farmor’s School, the respondent secondary school. Higgs publicly expressed her philosophical beliefs on gender and related social issues through a series of posts and reposts on her personal Facebook account.1 A parent of a child at the school complained to the Headteacher, attaching screenshots of the posts which expressed her concern that American schools are ‘busy recruiting children for the transgender roster’ and that children were being primed for ‘a gender fluid society.’2 The parent described the posts as expressing “homophobic and prejudiced views.”3 The school’s concern was not about Higgs’ beliefs themselves but about the possible effect of the Facebook posts on pupils, parents, staff, and the wider school community. The school believed that such views, when publicly expressed by someone interacting with vulnerable students, could foster an environment perceived as unsupportive or discriminatory towards LGBT individuals. As a result, the school began disciplinary proceedings against Higgs, which ultimately led to her dismissal. The school argued that its actions were driven by the need to maintain a safe and inclusive educational environment, rather than any hostility towards Higgs’ protected philosophical beliefs.
Higgs brought a claim for direct discrimination and harassment under the Equality Act 2010, asserting that her dismissal was because of her philosophical beliefs as protected by the Act. She argued that her views on gender fluidity and same-sex marriage constituted a philosophical belief within the meaning of the Act, and that the disciplinary hearing and termination which followed were unlawful discrimination.4 The Employment Tribunal, however, dismissed her claim, finding that the school’s actions were not taken “because of” her beliefs, but rather because of how her beliefs were manifested and perceived by others.5 The language used in the posts was described by the Employment Tribunal as “florid and provocative.”6 The Tribunal accepted that the school was concerned about the potential for her posts to be seen as homophobic and transphobic, a perception that Higgs strongly denied.
On appeal, the Employment Appeal Tribunal upheld the Tribunal’s decision. The main legal issue before the Court of Appeal was whether the disciplinary actions and dismissal constituted unjustified direct discrimination based on the manifestation of her protected belief.7 A key question was how her rights under Articles 9 and 10 of the ECHR (freedom of religion and expression) should be balanced in that assessment.8 The Court was also asked to clarify the correct approach to the manifestation of belief in the workplace and how it interacts with employers’ duties under the Equality Act.9
Rule
The starting point is the Equality Act 2010, which prohibits discrimination on the grounds of religion or belief. Section 13(1) forbids direct discrimination, defined as less favourable treatment because of a protected characteristic, including religious belief. This protection extends not only to holding a belief but also to its manifestation, such as expressing or acting upon the belief at work.10 Section 40(1) of the Act prohibits harassment of employees due to their religion or belief.11
The European Convention on Human Rights (ECHR), incorporated into UK law through the Human Rights Act 1998, further informs the scope of protection for religious beliefs and their expression. Article 9 guarantees the absolute right to hold a religious belief but only a qualified right to manifest that belief. Manifestations of belief may be lawfully restricted when necessary to protect public safety, order, health, morals, or the rights of others, subject to a proportionality test.12 Courts examine whether the restriction pursues a legitimate aim, is connected to that aim, is necessary, and whether the benefits outweigh the interference with religious freedom.13
In a similar case, Page v NHS Trust Development Authority,14 the Court of Appeal upheld the Employment Tribunal’s reasoning on the basis that the employer’s disciplinary action was not because the claimant held Christian beliefs but because of how those beliefs (specifically traditional views on family and homosexuality) were expressed publicly in a manner found objectionable and justifying disciplinary sanction. The Court recognised the validity of this distinction as the “separability approach,” which aligns with the orthodox legal analysis stemming from Nagarajan, where motivation for the employer’s actions is ascertained to determine if it is an objectionable manifestation or discrimination against the belief itself.15 This allows employers to justify disciplinary action for inappropriate or offensive behaviour without breaching discrimination law. The limitation operates through the causation requirement in Section 13(1) of the Act,16 meaning that if an employer’s action is objectively justified, it should not be considered as taken “because of” the manifestation of belief. Importantly, the burden of proof of objective justification rests with the employer, ensuring that claimants are not required to disprove lawfulness or proportionality.17
Application
The Court affirmed that the claimant’s beliefs were capable of protection under the Equality Act. In doing so, it followed the established reasoning in Forstater v CGD Europe,18 which confirmed that beliefs must meet the criteria from Grainger plc v Nicholson19 to qualify for protection. For a belief to qualify, it must be genuinely held; concern a substantial aspect of human life; be cogent, serious, and important; amount to more than a mere opinion; and be worthy of respect in a democratic society without conflicting with the rights or dignity of others.20 Having passed this test, the next issue concerned whether the respondent’s decision to dismiss the claimant was a justified interference with her right to manifest her beliefs.
The Court of Appeal clarified that if an employer’s response to an employee’s manifestation of belief is proportionate, considering the conduct, it may not constitute unlawful discrimination. It emphasised that the proportionality assessment must involve the structured analysis required under Articles 9 and 10 of the ECHR. Applying this proportionality test, it found that the Employment Tribunal would be bound to find the claimant’s dismissal not objectively justified, thus amounting to unlawful direct discrimination.21 Among the factors informing this conclusion were that the claimant’s posts were not overtly abusive or inflammatory in the same manner as cases such as Lilliendahl v Iceland,22 which by comparison involved speech that was “primarily intended to incite hatred or disgust”23 towards the LGBT community. In contrast, the posts shared by the claimant were largely republished content with which she did not necessarily agree in tone, and there was no indication of malicious intent or desire to cause harm. Furthermore, there was no evidence of reputational harm to the school,24 nor any suggestion that the claimant’s personal beliefs had influenced her professional conduct.25 The Court noted her unblemished record during six years of employment and the absence of any complaints about her work.26
The Court of Appeal allowed the appeal on the first ground, holding that the Employment Tribunal had erred in law by failing to properly apply the structured proportionality test. It therefore substituted a finding that the claimant’s dismissal constituted unlawful direct discrimination.27 However, the Court declined to disturb the Employment Appeal Tribunal’s decision to remit the remaining elements of the claim, expressing the hope that a fresh determination on those issues would prove unnecessary.28
Conclusion
While direct discrimination is generally not justifiable, the Court of Appeal recognised that where the discrimination arises from the manifestation of a belief, justification may be possible under Articles 9 and 10 ECHR.29 It also emphasised the importance of distinguishing between protected belief and conduct or expression that may reasonably be regulated.30 The ruling has significant implications for employment law, providing guidance to employers and tribunals on navigating disputes involving belief and expression, particularly in sensitive areas such as gender and sexuality.
However, the law in this area is “extremely context-specific,”31 and much of the court’s reasoning relied on the fact that Higgs’ posts were not her own words and, in any event, did not receive widespread attention.32 If the nature or reaction to the posts had been even slightly different, it would not have been surprising for the court to have gone a different way in its assessment of Higgs’ culpability and impact.33 Employers, therefore, cannot rely on precedent as a form of certainty and must seek to balance respect for individual belief with the legitimate interests of the workplace community, using proportionate responses to manifestations that risk harm or exclusion.
Works Cited
Statutes
Equality Act 2010
Human Rights Act 1998
Case Law
Bank Mellat v Her Majesty’s Treasury (No 2) [2013] UKSC 39
Forstater v CGD Europe UKEAT/0105/20
Grainger plc v Nicholson [2009] UKEAT 0219_09_0311
Higgs v Farmor’s School [2025] EWCA Civ 109
Higgs v Farmor’s School [2020] ET 1401264/2019
Kokkinakis v Greece (1993) 17 EHRR 397 (ECHR)
Lilliendahl v Iceland (29297/18) [2020] ECHR 931
Nagarajan v London Regional Transport [1999] UKHL 36, [2000] 1 AC 501, 511 Page v NHS Trust Development Authority [2021] EWCA Civ 1307
Secondary Sources
Christopher Grout, ‘Freedom of Expression and Freedom of Religion in the Context of the Transgender Debate’ (2020) 185 Law & Just – Christian L Rev 121
Michael Foran, ‘Discrimination and Manifestation of Belief: Higgs v Farmor’s School’ (2024) 53(2) Ind Law J 285
Squire Patton Boggs (US) LLP, ‘“Stupidly Rhetorical” Online Posts – Your Employer’s Rights to React (UK)’ (National Law Review, 14 February 2025) https://advance.lexis.com/api/document?collection=news&id=urn:contentItem:6F49- CKY3-RS7R-Y18F-00000-00&context=1519360 accessed 28 July 2025
Reference(S):
1Squire Patton Boggs (US) LLP, ‘“Stupidly Rhetorical” Online Posts – Your Employer’s Rights to React (UK)’ (National Law Review, 14 February 2025)https://advance.lexis.com/api/document?collection=news&id=urn:contentItem:6F49-CKY3-RS7R-Y18F 00000-00&context=1519360 accessed 28 July 2025, 1.
2 Higgs v Farmor’s School [2025] EWCA Civ 109 [8-12].
3Ibid., [2].
4 Christopher Grout, ‘Freedom of Expression and Freedom of Religion in the Context of the Transgender Debate’ (2020) 185 Law & Just – Christian L Rev 121, 134.
5 Higgs, [63]–[67].
6 Higgs, [163].
7Ibid., [2], [74], [169].
8Ibid., [8]–[12], [163]; Human Rights Act 1998 s 1 and Sch 1 arts 9 and 10.
9Ibid., [74], [181].
10 Equality Act 2010 ss 13(1), 4(1), 6(1).
11 Equality Act 2010 s 40(1).
12 Human Rights Act 1998, s 1 and Sch 1 art 9; Kokkinakis v Greece (1993) 17 EHRR 397 [ECHR].
13 Bank Mellat v Her Majesty’s Treasury (No 2) [2013] UKSC 39, [2014] AC 700 [74].
14 Page v NHS Trust Development Authority [2021] EWCA Civ 1307, [68].
15 Nagarajan v London Regional Transport [1999] UKHL 36, [2000] 1 AC 501, 511.
16 Equality Act 2010, s 13(1).
17 Ibid, s 136.
18 Forstater v CGD Europe UKEAT/0105/20, [2022] ICR 1.
19 Grainger plc v Nicholson [2009] UKEAT 0219_09_0311.
20 Ibid., [24].
21 Higgs, [158].
22 Lilliendahl v Iceland (29297/18) [2020] ECHR 931.
23 Higgs, [159].
24 Squire Patton Boggs (US) LLP, ‘“Stupidly Rhetorical” Online Posts – Your Employer’s Rights to React (UK)’ (National Law Review, 14 February 2025) https://advance.lexis.com/api/document?collection=news&id=urn:contentItem:6F49-CKY3-RS7R-Y18F 00000-00&context=1519360 accessed 28 July 2025, 4.
25 Higgs, [17].
26 Ibid., [163].
27 Higgs, [169].
28 Ibid., [174].
29 Higgs, [69].
30 Higgs v Farmor’s School [2025] EWCA Civ 109, at [74], [181].
31 Michael Foran, ‘Discrimination and Manifestation of Belief: Higgs v Farmor’s School’ (2024) 53(2) Ind Law J 285, 286.
32 Higgs, [161].
33 Squire Patton Boggs (US) LLP, ‘“Stupidly Rhetorical” Online Posts – Your Employer’s Rights to React (UK)’ (National Law Review, 14 February 2025) https://advance.lexis.com/api/document?collection=news&id=urn:contentItem:6F49-CKY3-RS7R-Y18F 00000-00&context=1519360 accessed 28 July 2025, 4.
