“Proportionality and ‘Separability’ in Dismissals for Manifesting Religious or Philosophical Beliefs”: A Commentary on Higgs v Farmor's School ([2025] EWCA Civ 109)

1. Introduction

This commentary concerns the Court of Appeal’s Judgment in Higgs v Farmor's School ([2025] EWCA Civ 109). The central issue was whether Mrs. Higgs, an employee in a secondary school, was unlawfully dismissed for posting messages on social media that expressed her religious and philosophical beliefs. In particular, her posts criticized government policies concerning LGBT and gender-fluidity education in schools and opposed same-sex marriage. She was subsequently dismissed after an investigative and disciplinary process.

The Court of Appeal was asked to determine whether her treatment amounted to direct discrimination (on the ground of religion or belief) under the Equality Act 2010 (“the 2010 Act”), or whether the school’s actions could be justified. The decision explores how UK courts must balance an employer’s desire to protect its reputation and the rights of others against an employee’s right to manifest religious or philosophical beliefs—rights that receive qualified protection under Articles 9 and 10 of the European Convention on Human Rights (“ECHR”).

In a lengthy and detailed judgment, the Court of Appeal ultimately found that the dismissal amounted to unlawful direct discrimination, reasoning that the sanction imposed by the school was disproportionate and neglected vital principles articulated in the 2010 Act and under the Convention.

2. Summary of the Judgment

Mrs. Higgs had posted critical or negative statements (principally “re-posts” from other sources) on Facebook regarding “gender fluidity” and same-sex marriage. Despite disclaiming that she bore no animus toward LGBT people, her employer investigated the complaint of “homophobic” and “prejudiced” views and ultimately summarily dismissed her.

She claimed direct discrimination and harassment under the Equality Act 2010, on the basis that her dismissal was motivated by her protected beliefs—namely, a Christian gender-critical conviction that marriage is between one man and one woman, and that gender is binary. An Employment Tribunal (ET) initially dismissed her claim, holding that the school’s reason for dismissing her was a concern that she would be perceived to hold “unacceptable views.” The ET conflated that possibility with a lawful dismissal.

On appeal, the Employment Appeal Tribunal (EAT) found that the ET had erred in law by not applying a proper proportionality test, and it ordered the matter remitted to the Employment Tribunal. However, Mrs. Higgs appealed further to the Court of Appeal, arguing that on the facts as found, the only permissible conclusion was that the dismissal constituted unlawful direct discrimination and that no remittal should occur for the dismissal aspect of her claim.

The Court of Appeal agreed: they held that although an employer can legitimately protect its reputation from truly objectionable or inappropriate manifestations of belief, the school’s action here was disproportionate. Integral to that conclusion was the recognition that the language Mrs. Higgs used was not on its face “grossly offensive” or directed at school pupils, and there was no evidence of reputational harm or risk to children under her care.

The Court concluded that genuine freedom of religious or philosophical expression within the law cannot be curtailed simply because others may find the expression “offensive.” While an employer may intervene where the speech is truly objectionable—particularly if it undermines the employer’s legitimate business or public responsibilities—any interference must be strictly proportionate. Here, the school’s sanction of dismissal was not justifiable, rendering their action unlawful discrimination under the 2010 Act.

3. Analysis

a) Precedents Cited

The leading authorities shaping the Court of Appeal’s Judgment include:

Page v NHS Trust Development Authority ([2021] EWCA Civ 255): The Court discussed the “separability principle,” under which an employer’s reaction to a manifestation of belief can be lawful if the employer’s objection rests on “inappropriate” or “objectionable” ways of expressing that belief, rather than the belief itself. Simultaneously, any interference must be justified under the proportionality test of Article 9(2) ECHR.
Eweida v United Kingdom (ECtHR, 57 EHRR 8): Confirmed that the right to manifest one’s religion is qualified by limitations necessary to protect the rights of others. The question is whether the manifestation of belief is sufficiently linked to the employee’s religion or belief, and, if so, whether any employer-imposed restriction is proportionate.
Forstater v CGD Europe and Mackereth v Department for Work and Pensions: Establish that “gender-critical” beliefs (such as the conviction that gender is binary) can be protected under the Equality Act 2010’s “religion or belief” provisions.
Smith v Trafford Housing Trust ([2012] EWHC 3221 (Ch)): A High Court judgment emphasizing that merely bringing an employer’s reputation into disrepute requires strong evidence of actual or likely damage, and that moderate social-media expression of a sincerely-held religious belief will typically not suffice.
Ngole v University of Sheffield ([2019] EWCA Civ 1127): Addressed the distinction between expressing a belief (“homosexual acts are sinful”) and the attendant concern that a professional in training might act badly towards LGBT clients. The Court concluded that an employer or authority must show “more” than a speculative risk or a perceived animus.

Other cited authorities include judgments on freedom of expression and freedom of religion under the European Convention on Human Rights, demonstrating that “offensive” or “shocking” speech may still receive protection if there is no justification under Articles 9(2) or 10(2) ECHR to restrict it.

b) Legal Reasoning

The Court of Appeal’s reasoning can be broken down into the following steps:

Identifying the Protected Belief: The Court confirmed that Mrs. Higgs’s belief in heterosexual-only marriage and binary gender was protected under the 2010 Act’s “religion or belief” provisions.
Manifestation of that Belief: The Court recognized that posting on Facebook—albeit personal, and under a maiden name—was a “manifestation” of her protected beliefs. Courts must scrutinize whether a dismissal, or another detriment, was caused by that manifestation.
“Separability” and “Objectionable” Expression: Reflecting Page, the Court distinguished between dismissals motivated solely by an objection to the content of the protected belief (unlawful direct discrimination) and dismissals legitimately triggered by a manifestation’s objectionable features—for instance, truly offensive, bigoted, or harassing language. In such scenarios, an employer may lawfully respond—but only if that response is proportionate.
The Proportionality Test (ECHR Articles 9 & 10): The domestic law on direct discrimination, by virtue of its synergy with Articles 9 and 10 ECHR, requires the employer to justify its limitation of the employee’s free manifestation of belief. This entails establishing that the dismissal or sanction pursued a legitimate aim (e.g., preventing genuine reputational harm) in a manner “necessary in a democratic society” and proportionate according to Bank Mellat principles.
Assessing Dismissal’s Harshness: The Court concluded that no genuine or major reputational harm was shown; that Mrs. Higgs was employed for six years with no discriminatory conduct alleged at work; and that she had expressed willingness not to treat LGBT students unfairly. The summary dismissal, therefore, went beyond what was justified. Even if the language in her posts was, in certain ways, “provocative,” that was not enough to warrant the most severe sanction of dismissal.

c) Impact

The ruling has potentially far-reaching consequences for employers and employees who risk friction over social-media expression of religious, philosophical, or other protected beliefs:

It clarifies that employers cannot dismiss employees merely because customers, clients, or community members might take offense to sincerely held and lawfully expressed beliefs.
It emphasizes a “proportionality” analysis when restricting religious or belief expression: an employer must show an actual or at least very likely reputational risk, combined with an inappropriate or grossly offensive manner of expression, before sanctioning the employee.
The Judgment reinforces that “lack of insight” alone does not validate severe disciplinary measures, especially in contexts where employees sincerely maintain they do not discriminate in their job performance.
The “separability principle” from Page is refined: a belief and the manner of its manifestation must be carefully distinguished, and the latter can only justify disciplinary action if proven objectively unjustifiable.

4. Complex Concepts Simplified

Several legal concepts in this Judgment can be daunting. Below are brief explanations:

Protected Characteristic: Under the Equality Act 2010, certain attributes (like religion or belief) confer protection from discrimination.
Manifestation of Belief: The right to hold a belief is absolute, but manifesting that belief (e.g., speaking, posting, acting upon it) can be subject to proportionate limitations to protect the rights of others.
Direct Discrimination: Treating someone “less favorably” because of a protected characteristic—here, religion or belief. Typically cannot be “justified,” except in limited contexts that incorporate proportionality from the ECHR.
Articles 9 & 10 ECHR: Guarantee freedom of religion (Article 9) and expression (Article 10), but with qualifications allowing proportionate restrictions for the protection of others’ rights or reputation and public order.
Proportionality Test: Courts ask whether the employer’s action serves a legitimate aim (e.g., preventing serious reputational harm) and use the least intrusive means necessary, balancing the employee’s freedom of belief and expression against the employer’s interest.
“Separability Principle” and “Objectionable Manifestation”: An employer may distinguish how a belief is expressed (e.g., intemperate language) from the fact that the belief itself is held. Only the objectionable aspect, if severe enough, can justify action, and that action must be proportionate.

5. Conclusion

The Court of Appeal’s Judgment in Higgs v Farmor's School confirms that employers must tread carefully when reacting to employees’ beliefs. Where a dismissal is founded merely upon concerns that certain groups may find an employee’s religious or philosophical stance “offensive,” that dismissal will likely be found unlawful—especially in the absence of genuine reputational harm or evidence that the employee would treat individuals in a discriminatory manner.

This Judgment is also valuable in clarifying how domestic anti-discrimination law (especially on direct discrimination) converges with Articles 9 and 10 ECHR, effectively “blending” the usual direct discrimination analysis with a requirement of objective justification for interference with an employee’s lawful manifestation of belief. In practical terms, tribunals must conduct a thorough proportionality check. The employer may only sanction the manifestation of belief if it can show that the sanction genuinely serves a necessary and legitimate concern and that no lesser measure would suffice.

Overall, Higgs v Farmor's School is a pivotal case in delineating the boundaries of acceptable employer action amid social media controversies touching on sincerely held religious and philosophical beliefs. It stands as a reminder that an employee’s freedom of expression—particularly regarding beliefs protected by law—cannot be curtailed arbitrarily or on speculative reputational grounds, but must instead be weighed with nuanced, fact-specific, and properly justified considerations.