Higgs v Farmor's School [2025] EWCA Civ 109

In brief

The Court of Appeal allowed the appeal of a school pastoral administrator [1] who had been dismissed after sharing social media posts, mostly quoted from other sources, objecting to Government policy on sex education in primary schools [175(4)]. HIGGS WON: the CA did not send the dismissal question back to the tribunal — it decided it, holding that the ET 'would be bound to find that the Claimant's dismissal was not objectively justified and accordingly that it constituted unlawful discrimination' [157] and substituting a finding that she succeeds on that claim [169], [174]. Dismissal was 'unquestionably a disproportionate response' [158] — and the Court reached that conclusion even on the assumption, made without deciding, that the School was entitled to take objection to the posts. Only remedy was remitted [169]; a secondary complaint about the disciplinary process was formally remitted but Underhill LJ 'strongly discourage[d] that course' [168]. That the Claimant's beliefs (including that gender is binary, and about same-sex marriage) were protected was common ground [27] and not in dispute following Forstater [100], [175(4)]; the Court did not decide it. On proportionality the Court applied the ratio of Page v NHS Trust Development Authority, by which it was bound [74], [80], and endorsed the EAT's guidance only as a summary of underlying principles, stressing that there is no one-size-fits-all approach and that a tribunal need not structure its reasoning around the nine listed considerations [113]; it laid down no framework of its own.

Key provisions

• Holding a belief is absolutely protected; manifesting it is not — manifestation can be proportionately restricted : Holding a belief is absolutely protected under Article 9 ECHR and s.10 EA2010. Manifesting that belief, however, can be proportionately restricted by an employer.
• holding-1 — Restricting how a belief is manifested: lawful only as a proportionate response to something objectionable in the way it was manifested, the burden being on the employer [74], [77], [175(2)] : Holding a belief is absolutely protected under Article 9 ECHR and s.10 EA2010. Manifesting that belief, however, can be proportionately restricted by an employer.
• The test is proportionality — not whether the belief itself is objectionable, but whether the specific manifestation in context was proportionate to restrict : The test is proportionality — not whether the belief itself is objectionable, but whether the employer's response was a proportionate (objectively justified) response to something objectionable in the way the belief was manifested, the way including the circumstances [74]–[75], [175(2)].
• holding-2 — Posts made outside work on a personal account: highly relevant to the extent of any reputational damage, but not a complete answer; subject-matter, manner, whether the views are clearly personal, seniority and audience bear on proportionality [140]–[142], [154], [181] : The test is not whether the manifestation undermines dignity, professional standards or confidence in the organisation; that phrase was ours, not the Court's. Dismissal merely for expressing a protected belief to which the employer, or a third party, objects is unlawful direct discrimination [175(1)]; dismissal for something objectionable in the way the belief was expressed, judged objectively, is lawful only if the employer shows it was a proportionate response [74], [77], [175(2)]. The threshold of offensiveness should be high [141]. The only interest analysed was the employer's legitimate interest in protecting its reputation, which gives no carte blanche to act because third parties find a belief offensive [139]. On the facts the dismissal was not objectively justified and was unlawful discrimination [157], [175(5)].
• The distinction between belief and conduct is central — organisations should regulate behaviour and impact, not adjudicate belief : The distinction between holding a belief and manifesting it (conduct) is central to the reasoning [33], [55], [175(1)]–[175(2)]. Toolkit advice, not the Court's: organisations should regulate behaviour and impact, not adjudicate belief.

When relevant

Any scenario where an employer restricts or sanctions how an employee manifests a protected belief, including social media posts by staff expressing gender-critical views. The key principle: holding a belief is absolutely protected [33], but an employer may act on the way it is manifested only where something in that manner is objectionable, judged objectively, and its response is proportionate, the burden being on the employer [74], [77], [175(2)]. By analogy only (the judgment decides nothing about them [135]): pronoun use refusal, pronoun policies, staff conduct codes, competing rights between s.7 (gender reassignment) and s.10 (belief), regulatory fitness-to-practise investigations. Directly relevant to social media policies. Use alongside MACKERETH-EAT-2022 and FORSTATER-EAT-2021.