What is an employer to do when faced with a conflict between an employee expressing their beliefs on a subject, where that expression potentially infringes the rights or freedoms of another, or where that expression is objectionable?
Case law trends
Over the last few years, the Employment Tribunals and various appeal courts and tribunals have been determining whether adverse treatment for employees (or workers) who express genuinely held, but often conflicting and controversial views, is lawful. We’ve explored this as the law has developed in this area previously, as well as the legal principles on which these cases are considered. This is neither a new concept, nor limited to the cases we’ve explored, but these cases have provided the structure needed to analyse circumstances where there is a conflict in rights and freedoms to be resolved.
We now have an authority which must be followed by the Employment Tribunal and Employment Appeal Tribunal when considering future cases involving the same issues. By issues, we mean circumstances where a genuinely held belief has been expressed and that belief is protected under the Equality Act 2010 (EqA 2010).
The background to Higgs
On 12 February 2025, the Court of Appeal (Court) delivered their decision on the latest of the series of cases, this time the case of Higgs v Farmor’s School. The Court were to determine whether dismissing Mrs Higgs constituted unlawful, direct discrimination which contravened the EqA 2010, informed by the context of the rights under the European Convention of Human Rights (the Convention). The Claimant’s claim was predicated on the fact that she had been dismissed because she had expressed her belief that gender cannot be fluid, or that someone can change their biological gender by choice. As a Christian, she also considered same sex marriage could not be equated to traditional marriage between a man and a woman. It was wrong to teach primary school children any different to these views.
In October 2018, Mrs Higgs, a pastoral administrator and work experience manager of the School, published on her Facebook page a post which a parent considered to be “homophobic and prejudiced views against the lgbt community”, triggering a complaint to the School.
Mrs Higgs’ post stated that education in primary schools was; “brainwashing our children” that; “same sex marriage is exactly the same as traditional marriage, and that gender is a matter of choice, not biology”. She expressed that; “this is a vicious form of totalitarianism aimed at suppressing Christianity”. In addition to her post, she re-posted the posts of others, including;
“The LBGT [sic] crow with the assistance of the progressive school systems are destroying the minds of normal children by promoting mental illness. Delusional thinking is a form of psychotic thinking, and we have professionals promoting it to our young kids.”
Mrs Higgs was dismissed.
Protection of a belief
There is a difference between the right to hold a religious or political belief, and the right to manifest (express) it. The latter is a qualified right, limited by law in so far as is necessary, or where it otherwise interferes with other, legitimate interests, including the rights of others.
There is a balance to be struck between the infringement of the right, and the legitimate objective sought to be achieved. The conflict arises when a person manifests their belief, not for having held it. That distinction isn’t always easy to make.
An employer should be very cautious about dismissing an employee who expresses their beliefs, where those beliefs are objected to by the employer, or others. This does not mean that an employer is obliged to tolerate any conduct at all from an employee which constituted a manifestation of a belief, whatever form it took and whatever the circumstances. Where there is a clear legal basis for the rights to freedom of belief and expression to be limited to the extent necessary for the legitimate protection of the rights of others, a sanction (including dismissal) is likely to be justifiable and lawful.
Re-writing the law?
However, the Court in Higgs have made that determination more difficult to make because they have essentially re-written section 13 EqA 2010, following (to some degree) their earlier decision in Page v NHS Trust Development Authority. Section 13 EqA 2010 has always asked what motivated the person to do what they did; did they discriminate “because of a protected characteristic”? The Court has determined that where the protected characteristic is one of the manifestation of a protected belief, the courts and tribunals must consider whether what the person did can be objectively justified. This is notwithstanding the fact that objective justification is found within the wording of the domestic law governing indirect discrimination, not direct discrimination.
They resolve the departure from the wording of section 13 EqA 2010 (and therefore the test for direct discrimination claims) by “blending” wording from the Convention. It is a de-facto re-writing of the EqA 2010, something the Supreme Court have suggested should be left for parliament [1].
Practical application
When faced with circumstances like this, employers should ask themselves two core questions.
- Does the consequence of the manifested belief justify infringement through a sanction?
- If so, what is least intrusive sanction which can be justified?
- If not, is the sanction warranted by the way in which the belief was expressed and is therefore genuinely separable from the expression of the belief itself?
The word justify should be considered in the context of achieving a legitimate aim (usually reputational damage or protection of the rights of others) and the infringement must be necessary in order to achieve that aim. Each of these questions are answered objectively, according to the Court. It is not sufficient to simply ask why the person did what they did. It is up to what a Judge or a court or tribunal thinks several years after the event, without the benefit of the context in which the decision was made.
In Higgs, the dismissal officer (and by extension, the School) found the Facebook posts to contain gratuitously offensive and insulting language to homosexual and/or trans people, and that it was relevant to Mrs Higgs’ work and therefore, their reputation as a School.
The Court however, determined that dismissing Mrs Higgs was a disproportionate response on the basis that the language she used was not “grossly offensive”, that the reference to the LGBT crowd was not her post, but one she reposted and that the School could not evidence reputational damage.
Despite this, and despite concluding that dismissal was not “even arguably” a proportionate sanction, the Court had no doubt that the School were entitled to investigate the complaint made by the parent. The Court accepted that the posts; “unquestionably used offensive language” which caused concern to at least one parent. The Court went further, stating as follows;
“It would frankly have been irresponsible not to try to ascertain whether there was a risk of serious reputational damage or of the Claimant “bringing into school” the issues that she raised in the posts or holding attitudes that might affect how she treated gay or trans children.” [para 167]
These conclusions make for challenging application. It leaves the water muddy, suggesting that employers would be “irresponsible” if they didn’t investigate (and by extension, potentially would be acting unlawfully in contravention of another’s rights, such as a complainant who was offended by similar posts), but that imposing a sanction will also be unlawful, unless it can be justified. A reader would be forgiven for thinking that such justification could rarely meet the high bar set by the Court.
An employer can expressly recognise the importance of free speech and protecting fundamental rights, consider all of the options available to it and considerations around why alternative sanctions are not reasonable in the circumstances and do so thoroughly and extensively (including in a 53-page dismissal letter in the case of Miller v University of Bristol [2]), with legitimate aims to protect, including their staff, third parties and their reputation. They can do all of this and they can still be found to have directly discriminated against an employee for manifesting their beliefs (as per Miller).
Of course, there will be other scenarios where employees are expressing beliefs which are not protected, typically because they are not worthy of respect in a democratic society and are not compatible with human dignity and conflict with the fundamental rights of others. So an employee expressing a belief in Nazism that seeks to stir up hatred or incite violence, for example, will not be protected under the Equality Act 2010 because it would fail the Grainger test (explored in our previous article).
Invariably in these cases, an employer has to consider whether the action they are considering taking (typically dismissing the employee for gross misconduct) is because of a manifestation of a genuinely held belief, or the manner in which they express it. That can be a difficult distinction to make and very careful thought needs to go into it before a decision is made.
An employer has a duty to protect employees from harassment, or other infringements of their rights. An employer will also want to protect their reputation. Each of these are legitimate objectives but don’t justify infringing fundamental Convention rights to hold or manifest beliefs. Deciding whether taking disciplinary action in response to that belief having been expressed in an objectionable way is the tricky part.
Concluding thoughts
There is a delicate balance to be achieved between the infringement of conflicting rights. What is now clear from the trend of case law, and the Court’s findings in Higgs, are that dismissing an employee for having expressed genuinely held beliefs which meet the Grainger test, is likely to be problematic.
Ultimately however, as Mrs Justice Eady sitting in the EAT said of this case; “tolerance and broadmindedness require nuance decision making; there is no ‘one size fits all’ approach.” [para 93 of the EAT decision]. For those reasons, getting specialist legal advice right at the outset is critical.
[1] Secretary of State for Business and Trade v Mercer [2024] UKSC 12; paragraph 120.
[2] Miller v University of Bristol ET/1400780/2022