Higgs (Respondent) v Farmor's School (Appellant)

Case summary

Case ID

UKSC/2025/0040

Parties

Appellant(s)

Farmor's School

Respondent(s)

Kristie Higgs

Issue

Where an employee manifests a belief which is protected under the Equality Act 2010 in an objectively objectionable manner, is adverse treatment by their employer “because of” their protected belief (as opposed to the objectionable feature), and therefore direct discrimination, unless the employer can objectively justify that treatment?

Facts

Kristie Higgs (the “Claimant”) had been employed by Farmor’s School (the “School”) for six years when, on 26 October 2018, a parent complained to the School that the Claimant had shared “homophobic and prejudiced” posts on her personal Facebook account. The Claimant was suspended pending an investigation, which led to a disciplinary hearing on 19 December 2018. The Claimant was summarily dismissed for gross misconduct on 7 January 2019. The Claimant brought claims against the School, including for direct discrimination on the grounds of protected beliefs under section 13 of the Equality Act 2010. The Employment Tribunal (“ET”) found that her beliefs (including against same-sex marriage and gender fluidity) were protected beliefs. However, this claim failed. The Claimant was not dismissed because of her protected beliefs, but because the language of the posts created a reasonable concern that she would be perceived her as holding other (i.e. homophobic/transphobic) beliefs, which could affect the School’s reputation. The Employment Appeal Tribunal (“EAT”) allowed the Claimant’s appeal. The ET should have found that the posts were a manifestation of the Claimant’s protected beliefs (“MOB”). Dismissal because of this MOB (itself) would be discriminatory. However, dismissal because of an objectively objectionable feature of her MOB (“OMOB”), would be for a separable (non-discriminatory) reason. The EAT reasoned that, following Page v NHS Trust Development Authority [2021] EWCA Civ 255 (“Page”), the Claimant’s MOB could only be an OMOB if the School’s actions in response to it was objectively justified, applying the test for objective justification of a restriction of the Claimant’s freedom of belief and expression rights under the European Convention on Human Rights. The EAT remitted the claim to the ET for it to assess whether the School’s response was objectively justified (and so non-discriminatory). The Claimant, however, brought a further appeal to the Court of Appeal (“CA”). She argued that the EAT itself should have determined that her claim succeeded rather than remitting it. The CA refused the School permission to cross-appeal on the EAT’s application of Page. The CA allowed the Claimant’s appeal, finding that the School’s dismissal of the Claimant was not objectively justified. It was therefore due to the MOB itself, and discriminatory. In the judgment the CA approved the EAT’s application of Page and suggested that the jurisprudential basis for the decision of Page was: (i) reading down the Equality Act 2010 under section 3 of the Human Rights Act 1998; and/or (ii) a highly purposive interpretation on normal statutory interpretation principles. The School now appeals against the CA’s decision to the UK Supreme Court.

Date of issue

13 March 2025

Case origin

PTA

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