UK: Court of Appeal endorses intervenor's proposed guidance on navigating manifestation of religion and belief issues in the workplace

Update 10 June 2025: the Supreme Court has refused permission to appeal the Court of Appeal ruling.

In Higgs v Farmor's School [2025] EWCA Civ 109, the Court of Appeal ("CoA") has upheld the Employment Appeal Tribunal's ("EAT") adoption of guidance proposed by an intervenor to the proceedings, the Church of England (for whom this firm acted), on how employers can navigate contentious workplace issues relating to potentially objectionable manifestations of belief (whether religious or otherwise), and in particular on deciding whether actions taken to restrict such manifestations of belief, and the free speech of an employee in the workplace, are proportionate, or if they would unlawfully directly discriminate against that employee.

The CoA confirmed that where an employer takes action against an employee for inappropriately manifesting a belief, it will amount to unlawful direct discrimination unless the employer can show that their action was objectively justifiable. The difficulty, until now, has been how an employer can straightforwardly determine if their proposed response can be objectively justified.

The guidance endorsed by the CoA assists with that question, and requires employers to consider a range of factors (see Guidance below) when deciding what action, if any, to take in relation to an employee who has manifested a belief in a way which either or both internal and external stakeholders have taken objection to. In endorsing the guidance, the CoA also supported the CoE's submissions that it is necessary to read the architecture of the Equality Act 2010 ("EqA") in a manner compatible with the prescribed methodology for legitimate interference with the fundamental rights to freedom of belief and freedom of expression under Articles 9 and 10 of the European Convention on Human Rights (the "Convention").

Herbert Smith Freehills (led by London Employment partner Andrew Taggart, consultant and former partner Peter Frost, and associate Josh Peters), alongside Sarah Fraser Butlin KC of Cloisters Chambers, acted for the Church as intervenor in both the EAT and CoA proceedings. The Court's judgment now marks the highest case authority on this issue (alongside the Court's previous decision in Page v NHS Trust Development Authority [2021] EWCA Civ 255 - the ratio for which the decision in Higgs confirmed and clarified). It is hoped that the Court's endorsement of the practical guidance will encourage employers and employees to resolve any differences on belief issues at the workplace (i.e. through mediation) rather than in tribunal.

Whilst the Church was neutral as to the outcome of Mrs Higgs' appeal (both at the EAT and CoA), the facts of her case reflect precisely the difficulties faced by employers in responding appropriately to controversial views.

Background

Mrs Higgs worked as a pastoral administrator and work experience manager in Farmor's secondary school. She is an evangelical Christian who believes that same sex relationships and gender fluidity are both prohibited by the Bible. Mrs Higgs shared content on her private Facebook account objecting to the nature of sex education in schools. The language of the posts, which was not Mrs Higgs' own, was later found by the Employment Tribunal ("ET") to be "florid and provocative".

One of Mrs Higgs' Facebook "friends", who was a parent at Farmor's, complained to the school that the posts illustrated that Mrs Higgs was homophobic and transphobic, and expressed concern at the influence that she could exert over vulnerable pupils. Mrs Higgs denied these allegations, but was suspended and put through a disciplinary process. Mrs Higgs stated that she stood by her posts, and that she was entitled to express her beliefs (although she admitted that on reflection some of the language used was unfortunate). However, the school determined that there was a risk that someone viewing the post would reasonably conclude that she held such beliefs (and could therefore cause real harm to pupils) and as such dismissed her for gross misconduct in breaching its Code of Conduct.

Employment Tribunal decision

The ET accepted that Mrs Higgs' beliefs were protected under the EqA, but found that the school had acted solely because Mrs Higgs would be perceived as holding unacceptable beliefs in relation to LGBTQ+ people. As such, Mrs Higgs' treatment was not because of her beliefs but because of the perception of her beliefs (despite her denying that the perception was correct).

Church of England intervention

Mrs Higgs appealed to the EAT, and the Church was permitted to intervene in the appeal to make submissions on how the various strands of European and domestic law should be integrated, in the light of policy considerations recognising the need to try to reconcile opposing beliefs and encourage mutual respect and tolerance at a time when public debate had become increasingly strident.

The Church was also permitted to propose guidance for the application of a proportionality assessment applicable to the issues in the case.

The Guidance

While recognising that such cases were to an extent fact-specific, and that not all factors will apply in all cases, both the EAT and CoA ultimately approved the following guidance proposed by the Church to be applied in the workplace:

• The foundational nature of the relevant Convention rights must be recognised "whether or not the belief in question is popular or mainstream and even if its expression may offend";

• The manifestation of a belief and free expression may be limited to the extent necessary to protect the rights and freedoms of others;

• The employer must be clear that its objective is sufficiently important to justify the limitation of the particular right, that the limitation is rationally connected to it, whether a less intrusive limitation might be applied and whether, balancing the severity of the limitation on the rights of the employee against the importance of the objective, the former outweighs the latter.

In answering these questions, a combination of some or all of the following considerations are likely to be relevant:

1. The content of the manifestation;
2. The tone used;
3. The extent of the manifestation (i.e "the closeness of connection between the manifestation and the workplace");
4. The employee's understanding of the likely audience;
5. The nature and extent of the intrusion on the rights of others and any impact on the employer's ability to run their business;
6. Whether the employee has made clear that the views expressed are personal or whether they might be seen as representing the views of the employer;
7. Whether there is a potential power imbalance given the nature of the employee's role and that of those whose rights are intruded upon;
8. The nature of the employer's business, in particular where there is a potential impact on vulnerable service users or clients; and
9. Whether the limitation imposed is the least intrusive measure open to the employer.

Employment Appeal Tribunal decision

The EAT held that the ET had not focussed on the clear connection between Mrs Higgs' Facebook posts and the need to decide if the school's concerns arose out of Mrs Higgs holding the beliefs she held, or purely the inappropriate manifestation of them. The school had impermissibly narrowed its task and failed to properly consider its intervention with Mrs Higgs' Convention rights.

The EAT requested that the case be remitted to the original ET, which could then apply the Church's guidance. Notwithstanding the fact that the EAT had allowed her appeal, Mrs Higgs appealed to the CoA.

Court of Appeal decision

The main basis for Mrs Higgs' appeal was the decision of the EAT to remit the case to the original ET, rather than simply reversing the original decision, and perceived errors in the EAT's reasoning, namely that: (i) the EAT was bound to conclude that the school's actions could not be justified under the Convention, (ii) that the EAT had failed to direct itself, or to provide guidance to the ET on remission, (iii) that the Convention protects not only the substance of a manifestation but the manner of its expression, and (iv) that the EAT had failed to deal with certain grounds of Mrs Higgs' appeal, which, had it done so, would have meant it was bound to conclude that the school had unlawfully stereotyped Mrs Higgs. Mrs Higgs' appeal also criticised the Church's guidance as having given too much discretion to tribunals and employers to restrict freedom of expression of protected beliefs.

In granting permission to appeal, Lady Justice Elisabeth Laing identified further questions of importance for the Court to consider, in particular focussing on whether the Church's guidance as endorsed by the EAT had interfered with the statutory rule that direct discrimination can never be justified, and whether it was right to read a proportionality assessment derived from the Convention into the EqA. These questions attracted the interest of several new intervenors representing the spectrum of viewpoints on how best to tackle these issues (the Equality and Human Rights Commission, the Free Speech Union, Sex Matters, and the Association of Christian Teachers).

In the CoA's judgment, Underhill LJ made the following key points:

• Dismissing an employee for expressing a protected belief to which the employer objects will constitute direct discrimination under the EqA, unless the dismissal is motivated by the inappropriate manner in which a belief was expressed, and not the belief itself.

• Per the ratio in Page, dismissals for the former and not latter reason will be lawful, but only if the employer (on whom the burden of proof falls) can show it was a proportionate response to the inappropriate manner of the manifestation. That requires an analysis carried out in accordance with the Convention, and so the effect of Page is that it is "jurisprudentially legitimate" to blend the EqA and Convention architectures.

• Although Page therefore does import an objective justification test into the direct discrimination provisions of the EqA, this is only because of the protections on freedom of belief conferred by the Convention, and does not impact other cases involving direct discrimination.

• In distinguishing (through the lens of Articles 9 and 10 of the Convention) between an inappropriate manifestation of a belief and the manifestation itself, and determining if an interference in Convention rights is proportionate, the Church's framework provides a helpful summary of the underlying principles. Underhill LJ also noted that a number of ET judgments had already acknowledged that the guidance was helpful.

• Underhill LJ also endorsed (albeit obiter) the EHRC's summary of the position on the impact of stereotyping on discrimination claims. Where an employer has, consciously or sub-consciously, been significantly influenced by a stereotype in relation to religion or belief about the employee (e.g. that anyone who holds or manifests gender critical beliefs must have animus towards transgender people because others who hold or manifest those views do), the employer's treatment of that employee will be direct discrimination (i.e. it will be "because of" the belief or religion).

Implications

The publicity around this decision continues to focus on the fact that a Christian has won their case despite holding beliefs that can be thought to be unacceptable to a number of people. However, the real significance of this decision is the guidance approved by the CoA, which would apply in equal measure to someone who believed just as strongly in the inverse position to Mrs Higgs, or to entirely unrelated issues such as the climate emergency or matters of geopolitics (where these amounted to protected beliefs).

Higgs highlights the need for employers to take a measured approach rather than simply seeking to respond to those who may object to a controversial expression. It will no longer be sufficient to say that the employer would have taken the same responsive action against anyone who had acted in a similar generic way to the employee (e.g. by breaching a code of conduct), as such an approach fails to recognise the importance of the underlying Convention rights and the need for the response to be proportionate.

The nuanced nature of the required balancing exercise has been made clear. The real hope is that employers and employees can now resolve any disputes in the workplace rather than in tribunal. Indeed, this could be a paradigm case for workplace mediation.