Supreme Court refuses Farmor’s School permission to appeal

Earlier this year, a Christian school administrator who was dismissed after sharing Facebook posts considered transphobic and homophobic won her appeal to the Court of Appeal, which found her dismissal constituted unlawful discrimination due to her expression of a protected belief.

Following the decision, her ex-employer Farmor’s School (the “School”) sought permission to appeal to the Supreme Court, but this permission has now been refused.

The Supreme Court only grants permission for appeal if a case raises a point of law with public importance which requires its attention. As permission has now been refused, the case is brought to a close; the court process has been exhausted and the Court of Appeal’s judgment remains final.

Background on Higgs v Farmor’s School

Mrs Higgs is a Christian and was employed by the School as a pastoral administrator and work experience manager from 2012. The School received a complaint that Mrs Higgs had been “posting homophobic and prejudiced views against the LGBT community” on social media in October 2018.

Mrs Higgs was suspended and ultimately dismissed for gross misconduct. The School found that she had not appreciated or understood the implications that the post may have on the School’s reputation in the local community.

The case was first heard by the Employment Tribunal and then the Employment Appeal Tribunal, after which the School appealed to the Court of Appeal. The Court of Appeal determined that dismissing an employee because they expressed a religious or protected belief constitutes unlawful, direct discrimination under the Equality Act 2010, regardless of whether the employer acted to protect its reputation. It was therefore held that Mrs Higgs’ dismissal amounted to unlawful discrimination.

Our detailed note on the case can be found here.

Considerations for schools

The Supreme Court’s decision to refuse permission for appeal in this case confirms the Court of Appeal’s earlier ruling that Mrs Higgs’ dismissal amounted to unlawful discrimination based on her beliefs.

This refusal reaffirms the need for schools to strike a careful balance between the right for employees to express their beliefs and any potential risk to the school’s reputation or impact on others. Even if those beliefs may be considered controversial, any action in response to having those beliefs must be necessary and proportionate.

As noted in our previous report on this case, schools should take the following points into consideration moving forward:

• Dismissal of an employee just because they have expressed a protected belief, which is unconnected to their work may be discriminatory – even if it is controversial
• Any disciplinary action taken against an employee, up to and including dismissal, because of an objectionable expression of a protected belief must be proportionate and objectively justifiable
• Actual evidence of reputational damage, now or in the future, will be key in determining whether dismissal is objectively justifiable in such circumstances.

Schools should remember that, while they have a responsibility to prevent unlawful discrimination and harassment in the workplace and appropriate action may need to be taken, any actions must be considered on a case-by-case basis.