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Case law

Higgs v Farmor’s School

Under Section 10 of Equality Act 2010 (EqA), a person is protected from being discriminated against for their religion and beliefs.

Claims were brought under Direct Discrimination and Harassment on the grounds of religion and belief.

Trending topic

The rise of sexual harassment complaints

In 2024, the number of inquiries from both businesses and employees more than doubled, prompting calls for employers to prioritise training for managers and implement zero-tolerance policies.

New research has revealed a significant increase in sexual harassment disputes reported to ACAS, following the introduction of the Worker Protection (Amendment of Equality Act 2010) Act 2023 in October last year.

ACAS data indicates that, over the past nine months, 878 cases (16%) of reported sex discrimination involved sexual harassment.

Additionally, a recent Freedom of Information (FOI) request highlighted that the number of sexual harassment-related inquiries to the ACAS helpline from both businesses and employees more than doubled in 2024 compared to the previous year.

ACAS has reported a sharp increase in helpline calls regarding sexual harassment. In the third quarter of 2024, they received 803 calls from employees on this issue, reflecting a 59% rise from the previous quarter.

Employer helpline calls about sexual harassment also surged by 164% in the same period, surpassing 100 calls for the first time.

Background

Mrs Higgs (a practicing Christian) had been employed by the school for six years, latterly as a pastoral administrator and work experience manager. In the first of those roles, she was responsible for overseeing students who had been removed from class for disruptive behaviour.

On 26 October 2018 a parent at the school emailed the Head Teacher to complain that Mrs Higgs had expressed “homophobic and prejudiced views” on her Facebook page. Following an initial interview with the Head Teacher, Mrs Higgs was investigated and subsequently suspended.

She was invited to a disciplinary hearing and dismissed on the grounds of gross misconduct. Although she did appeal the decision, she was unsuccessful and therefore began proceedings in the Employment Tribunal.

The complaints which eventually proceeded were of (direct) discrimination and harassment, within the meaning of sections 13 and 26 respectively of the Equality Act 2010, in both cases on the ground of religion or belief.

Case law

Judgment

The matter in question was whether the dismissal constituted direct discrimination and harassment, based on her religious beliefs, or whether the dismissal was justified.

The Employment Tribunal (ET) found in favour of the School and Mrs Higgs claims were dismissed. She appealed the decision, and the Employment Appeals Tribunal (EAT) allowed her appeal, and the claim was remitted to the Employment Tribunal.

Although successful, Mrs Higgs felt that the EAT should have found in favour of her case instead of returning it to the ET to re-review. She therefore appealed the matter to the Court of Appeal (CA). CA has returned its judgement in Higgs v Farmor's School.

The case is important as it reminds employers that where an employee expresses views that are protected, but the employer finds the expression of these views objectionable, the employer must be conscious that if there is any disciplinary action, this must be proportionate otherwise it could be discriminatory.

With the February Court of Appeal ruling, it has now been stated that:

The original dismissal was unlawful discrimination on the grounds of religion or belief.
Where a dismissal is due to the employer finding the expression of a person’s religion or belief objectionable, then the dismissal is only lawful if the employer can prove that its response was proportionate.
The decision is an important one and employers should be mindful of it in relation to (for example), employees expressing views on religion, sexual orientation, or gender identity.

Case law

Conclusion

Although the views represented by Mrs Higgs were against the ethos of the school, the Courts reviewed all the material facts which included the fact that Mrs Higgs used her maiden name for her Facebook and her married surname at school and that her social media made no reference to her employer.

Although the parent who complained was familiar with her, the Courts found that those in the wider domain would not have been able to trace Mrs Higgs to the school.

Case law

Key takeaways

The dismissal of an employee merely because they have expressed a religious or other protected belief to which the employer, or a third party with whom it wishes to protect its reputation, objects will constitute unlawful direct discrimination within the meaning of the Equality Act.
However, if the dismissal is motivated not simply by the expression of the belief itself (or third parties’ reaction to it) but by something objectionable in the way in which it was expressed, determined objectively, then the dismissal will be lawful if, but only if, the employer shows that it was a proportionate response to the objectionable feature – in short, that it was objectively justified.

The case discusses complex views and judgments on the Equality Act and as such, care should always be taken when attempting to discipline an employee simply because your viewpoints do not align.

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