Supreme Court refuses school permission to appeal in dispute over dismissal of employee for Facebook posts on teaching of “gender fluidity”

The Supreme Court has refused a school permission to appeal a ruling that the dismissal of a Christian employee constituted unlawful discrimination on the ground of religion or belief.

In February this year the Court of Appeal allowed an appeal from Kristie Higgs, a pastoral administrator and work experience manager, who was dismissed in 2018 by Farmor’s School because she posted messages on her personal Facebook account opposing the teaching in schools, and in particular primary schools, of “gender fluidity” and that same-sex marriage is equivalent to marriage between a man and a woman.

The school had asked the Supreme Court to consider the following 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?”

The background to the dispute – as set out by the Supreme Court – was that a parent complained to the school that Higgs had shared “homophobic and prejudiced” posts on her personal Facebook account.

The claimant was suspended pending an investigation, which led to a disciplinary hearing in December 2018. The claimant was summarily dismissed for gross misconduct on 7 January 2019.

Higgs 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 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 allowed the claimant’s appeal. It said 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, 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. She argued that the EAT itself should have determined that her claim succeeded rather than remitting it.

The Court of Appeal refused the school permission to cross-appeal on the EAT’s application of Page.

The Court of Appeal allowed Higgs’ 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 Court of Appeal 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.

Farmor’s School sought to appeal against the Court of Appeal’s decision to the UK Supreme Court, but a panel comprising Lord Reed, Lord Hamblen and Lady Simler refused permission last week (4 June).

Andrea Williams, chief executive of the Christian Legal Centre, which has supported Higgs in her claim, said: “We welcome the Supreme Court's decision, which brings a decisive closure to this extraordinary case.

"The Court of Appeal ruling, now unequivocally upheld, powerfully demonstrated that the foundational Christian principles of free speech and religious liberty are not yet extinguished from English law. The resolution of Kristie’s case establishes a critical legal precedent that will resonate for many years to come, protecting the right to express Christian beliefs without fear of reprisal.”

See also: Employees and social media posts: the Court of Appeal in Higgs v Farmor’s School - Luke Green and Emma Ahmed set out some key learning points from the case.