Court of Appeal allowing a claim for discrimination where the claimant expressed or disagreement with government policy relating to same-sex relationships and gender identity issues in primary school.

The claimant worked as a pastoral administration/work experience manager in the respondent school.  On her personal Facebook page she posted content criticising the government policy on teaching primary school children about same-sex relationships and gender identity issues.   The claimant was a Christian.  A parent of a child at the school complained that the claimant expressed homophobic and prejudiced views. The claimant was dismissed for gross misconduct.

The claimant brought claims relating to direct discrimination and harassment on the ground of religious or other belief.

At first instance, the Tribunal dismissed the claim stating that the claimant was dismissed because the language used could be considered homophobic and transphobic and those views did not qualify for protection.  The claimant appealed to the EAT and they stated that the Tribunal had failed to consider the core question of whether there was a close or direct nexus between the posts and the protected beliefs of the claimant.  There had to be a test of objective justification in relation to Articles 9 and 10 of the ECHR.  The matter was remitted back to the Tribunal from the EAT.

The claimant appealed to the Court of Appeal.  The claimant believed that the EAT should have gone further and held that her claim should have succeeded rather than remitting it back to the Tribunal.  The Court of Appeal held that there was nothing axiomatically objectionable with the point that direct discrimination could be capable of justification and in manifestation cases they were different than other situations of discrimination on the basis of other protected characteristics.  The decision in Page v NHS Trust Development Authority decided that there should be such objective justification and the Court of Appeal here stated that such requirement was required to ensure compliance with rights within the ECHR.

The Court of Appeal outlined that the employer did not have carte blanche right to interfere with an employee’s right to express their beliefs but similarly the employee did not have carte blanche right to express any belief in public.   There could be limitations in line with the employment relationship between the parties.  There would have be considerations as to what is proportionate.  Courts would have to consider the subject-matter of the expression of belief, the way in which it was expressed and the extent to which they were personal to the employee. Bearing this in mind the School was able to rely upon an argument of reputational damage as a basis for the action being taken.

The main matter was the disposal from the EAT.  The Court of Appeal stated that the Tribunal would be bound to find that the dismissal was not objectively justified and it was unlawful discrimination. Even if the School could take objection to the points based upon the language and considering that it related to sex education in school, and therefore related to the employee’s employment, it would be disproportionate to dismiss.  The posts on Facebook did not incite hatred or disgust for homosexuals or trans people.  The claimant had reposted material and whilst not absolving her of responsibility, it was relevant to culpability.  Considering the fact that the Tribunal would be bound to allow the claimant’s claim it did not require the matter to be remitted.  Instead, the Court of Appeal allowed the appeal and the claimant’s claim.  The matter was remitted to the Tribunal for the remedy.

Claimant/Appellant:
Kristie Higgs

Respondent:
Farmor’s School

The balancing of rights continues to be a troublesome area of the courts.  It is not surprising that these matters find themselves in the higher courts, such as the Court of Appeal.  This is based upon the strength of opinion on the points and the extent to which other organisations can and do get involved in the litigation.   The Court of Appeal has provided some useful guidance on the balancing of such rights and would have to take into account the subject matter, the way in which belief is express and the extent to which it is personal.   This goes to the proportionality and whether there is an objective justification.

You can read the case in full here:
https://www.judiciary.uk/wp-content/uploads/2025/02/Higgs-v-Farmors-School.pdf