Kristie Higgs v Farmor's School

An employer directly discriminates because of religion or belief if it dismisses an employee merely for expressing a protected belief, including because third parties object to it. Where the employer instead objects to something objectively inappropriate in the manifestation, dismissal is lawful only if the employer proves that its response was proportionate.

The meaning of the expression must be assessed objectively by reference to what it would convey to a reasonable reader. Reputational harm may justify interference, but mere offence or wrongly inferred prejudice cannot. Relevant considerations include the expression’s subject, language, context, audience and connection with the employer. The threshold of offensiveness is high. Even assuming that social-media posts used objectionable language relevant to the employer’s work, dismissal was disproportionate where circulation and reputational harm were limited and the employee’s work disclosed no discriminatory conduct.

The claimant worked as a pastoral administrator and work-experience manager at a secondary school. She was summarily dismissed after a parent complained about Facebook posts opposing the teaching of gender fluidity and equivalence between same-sex and opposite-sex marriage. The posts, principally reproduced from other sources, used provocative and offensive language. They appeared on a personal account which did not identify the school.

The Employment Tribunal dismissed claims of direct religion-or-belief discrimination and harassment under sections 13 and 26 of the Equality Act 2010. It held that the school acted because the posts might cause readers to perceive the claimant as homophobic or transphobic, rather than because of her protected beliefs. The Employment Appeal Tribunal allowed her appeal in [2023] EAT 89, holding that the tribunal had failed to assess objective justification, but remitted the claim.

The claimant appealed, contending principally that the Employment Appeal Tribunal should itself have held that her dismissal was unlawfully discriminatory.

1. Appeal allowed in respect of dismissal. The Employment Appeal Tribunal was wrong to remit the dismissal issue. The only possible conclusion was that dismissal constituted unlawful direct discrimination because of religion or belief. The dismissal claim was remitted solely for determination of remedy. The remaining disciplinary-process issues formally remained remitted.
2. The right under the Equality Act 2010 not to be discriminated against because of religion or belief extends to manifestation of a protected belief. Under Page v NHS Trust Development Authority [2021] EWCA Civ 255, treatment motivated by an objectively inappropriate feature of the manifestation is treated as separable from the protected manifestation only where the employer proves that its response was objectively justified. The assessment corresponds substantially to articles 9(2) and 10(2) of the Convention and applies to direct discrimination and harassment.
3. The proportionality inquiry asks whether the employer’s objective is sufficiently important, whether the measure is rationally connected to it, whether a less intrusive measure was available, and whether the infringement’s severity outweighs the measure’s likely benefit. The Employment Appeal Tribunal’s guidance in [2023] EAT 89
4. An employer cannot interfere with expression merely because the belief offends third parties or causes them to think worse of the employer. Reputational protection can nevertheless be legitimate. Relevant considerations include the expression’s connection with the employer’s work, the manner and context of expression, the likely audience, whether the views could be attributed to the employer and the extent of any actual or likely harm. The threshold of offensiveness must be high.
5. A statement must be judged by what it actually communicates to a reasonable reader, including necessary implications. A response cannot be justified by subjective or stereotypical inferences which the words do not objectively bear. Falk LJ emphasised that only after determining the expression’s objective meaning may a tribunal decide whether it was inappropriate and whether the employer’s response was justified.
6. Even assuming that the reposted language was objectionable, dismissal was unquestionably disproportionate. The language was not grossly offensive, was mainly written by others, had caused no demonstrated reputational damage and had only a speculative prospect of wider circulation. The claimant had an unblemished six-year work record, had never expressed the views at work or treated pupils differently, and could have been subjected to a lesser measure.

1. Court of Appeal (Civil Division): Allowed the appeal against remission of the dismissal claim and substituted a finding that the dismissal was unlawful direct discrimination. The appeal concerning remission of the remaining disciplinary-process issues was dismissed.
2. Employment Appeal Tribunal: In [2023] EAT 89, allowed the claimant’s appeal because the Employment Tribunal had not applied the required objective-justification assessment, but remitted the claim for redetermination.
3. Employment Tribunal: Dismissed the claims of direct discrimination and harassment under the Equality Act 2010.