The Court of Appeal has handed down its highly-anticipated judgment in Higgs v Farmor’s School. The case concerned a Christian Claimant who was a secondary school counsellor. 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.

In order to fully understand this case, it’s important to look at the special way in which direct religion or belief discrimination operates. Direct discrimination typically means treating someone unfairly due to a protected characteristic, with no justification possible (except for age discrimination). However, religion or belief differs from other characteristics like race or sex because, if you hold a belief, it doesn’t mean anything unless you are able to tell people about it. It is this (referred to as ‘manifestation’) which puts religion or belief discrimination in a particularly interesting position. 

This is how the law sees it:

1. Employers cannot treat employees unfairly because of their religion or belief.
2. Article 9 of the European Convention on Human Rights protects freedom of religion, including the right to manifest beliefs.
3. Whether an action counts as manifestation depends on its connection to the belief.
4. If an employer penalises an employee for how they manifest their belief (rather than the belief itself), the action must be proportionate and justified.

Essentially, direct discrimination based on manifestation of religion or belief is unlawful unless the manifestation is objectionable, and the employer’s response is justified.

Higgs v Farmor’s School: What happened?

The Court of Appeal held that the Claimant’s Facebook posts were a manifestation of her protected beliefs. The Respondent’s decision to dismiss her in response was discriminatory. The Respondent 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, the Claimant had not expressed these views at work or discriminated against pupils. 

How employers should handle religious expression

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?

Key takeaways for employers

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.

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