Higgs v Farmor’s School

The Court of Appeal allowed the claimant's appeal in part and held that her summary dismissal amounted to unlawful direct discrimination on the ground of religion or belief. The court applied the domestic and Convention framework for protection of the manifestation of belief, in particular the test in Eweida for when conduct amounts to a manifestation of belief and the proportionality steps (as summarised in Bank Mellat), and followed the ratio of Page v NHS Trust Development Authority that an employer may lawfully respond to an objectionable manifestation of belief only where the response is objectively justified. The court concluded that, even accepting the School could legitimately object to the language re‑posted by the claimant and to the risk of reputational harm, dismissal was a disproportionate sanction on these facts and therefore unlawful. The Employment Appeal Tribunal’s order remitting the question to the Employment Tribunal was not appropriate as to the dismissal claim and the Court substituted a finding that the claimant succeeded on that claim; other elements were remitted for remedy or further determination.

This appeal concerned a secondary‑school employee dismissed after re‑posting material on her private Facebook account criticising the teaching of relationships and sex education and asserting a gender‑critical position. The school investigated after a parent complained that the posts contained "homophobic and prejudiced views", disciplined the claimant and summarily dismissed her for gross misconduct. The claimant brought claims of direct discrimination and harassment under the Equality Act 2010 (religion or belief). The Employment Tribunal dismissed her claims. The Employment Appeal Tribunal allowed her appeal and remitted the matter to the ET for reconsideration, directing that the ET should apply the Convention‑based proportionality enquiry to the question whether the employer’s actions were because of, or related to, the claimant’s manifestation of belief, or whether they were a justified response to the manner of that manifestation.

Procedural history: Claim at the ET dismissed (September 2020); appeal to EAT allowed and remitted ([2023] EAT 89); claimant appealed to Court of Appeal; cross‑appeal permission refused. The court heard interveners including the Archbishops’ Council, Free Speech Union, Association of Christian Teachers, Sex Matters and the EHRC.

Nature of the claim / relief sought: Direct discrimination and harassment under sections 13 and 26 of the Equality Act 2010 (religion or belief) challenging suspension, investigation, dismissal and the rejection of internal appeal; remedy for unlawful discrimination (remedy/remittal for determination).

Issues framed by the court:

• Whether the posts amounted to a manifestation of protected beliefs and, if so, whether adverse treatment was "because of" (direct discrimination) or only because of some separable, objectionable feature of the manifestation.
• Whether the Page approach (importing a Convention‑style, objective proportionality enquiry into manifestation cases) was correct and applicable.
• Whether, applying that approach, the employer’s interference with the claimant’s Convention rights (articles 9 and 10) was "prescribed by law" and "necessary in a democratic society"—i.e. whether dismissal was objectively justified and proportionate in the employment context.

Court’s reasoning (concise): The court analysed Strasbourg authority (in particular Eweida) on the distinction between holding a belief and manifesting it, and the need for a proportionality assessment when manifestation impacts on others. It reviewed the domestic separability jurisprudence and the ratio in Page (which it treated as binding) that, in manifestation cases, an employer may justify action where the objectionable manner or context of manifestation is shown and the response is proportionate as assessed by a Bank Mellat style four‑step proportionality test. The court concluded that the Employment Tribunal had not carried out the necessary objective assessment of meaning, manner, audience and proportionality. Applying those tests itself to the established facts, the Court found that, although the posts used offensive language and were relevant to the school’s remit, dismissal was disproportionate: the re‑posts were largely quoted material (not the claimant’s own phrasing except for some emphatic additions), there was no evidence she had treated pupils differently, the risk of widespread reputational harm was speculative, and she was a long‑serving employee. The Court therefore held the dismissal unlawful and substituted a finding for the claimant on that issue; remaining matters were remitted for remedy or further determination.

Appeal allowed. The Court held that the Employment Appeal Tribunal was right to require the question whether the School’s actions were because of the claimant’s manifestation of belief or were a justified objection to its manner to be assessed by reference to the Convention‑style proportionality enquiry identified in Page and Eweida. Applying that test itself to the established facts, the Court found dismissal to be disproportionate and therefore unlawful direct discrimination under the Equality Act 2010; it substituted a finding for the claimant on the dismissal claim and remitted remaining matters (including remedy) to the Employment Tribunal.

Employment Tribunal (Judge Reed and panel) dismissed claimant's claims (judgment 6 October 2020). Employment Appeal Tribunal (Eady J, President) allowed the claimant's appeal and remitted the matter to the ET ([2023] EAT 89, judgment 16 June 2023). Permission to appeal to the Court of Appeal was granted; the Court of Appeal (Underhill LJ, Bean LJ, Falk LJ) allowed the claimant's appeal on the dismissal claim and substituted a finding of unlawful direct discrimination ([2025] EWCA Civ 109). Permission for the respondent to cross‑appeal was refused by Elisabeth Laing LJ and that refusal was not re‑opened.