THE Court of Appeal in Higgs v Farmor’s School [2025] EWCA Civ 109 might offer the Supreme Court something to chew on. Fusing human rights law jurisprudence into the carefully constructed framework of domestic non-discrimination law, Higgs appears to be a comprehensive attempt to square the circle. It acknowledges direct discrimination on the ground of expression of belief to fall within the scope of the Equality Act 2010 (EA), simultaneously allowing employers to justify objectively such discrimination if the manner of expression becomes disproportionately (and objectively) “objectionable”.

Commendable as Higgs may be, it could prove a step too far. The Court of Appeal, on the heels of Page v NHS Trust Development Authority [2021] EWCA Civ 255, through an interpretation in line with Article 9(2) of the European Convention of Human Rights (ECHR), essentially read a new facet of a protected characteristic into the meaning of “belief” under section 10 of the EA, thus allowing for the justification of direct discrimination beyond the statutorily mandated (EA, sched. 9) occupational requirements defence. That approach might be stretching section 3 of the Human Rights Act 1998 (HRA) to its limits. However, it could lead to a more radical human rights law based shift of discrimination law, in the first instance and, potentially, even of employment law itself.

In Higgs, the Court of Appeal addressed the suspension and ultimate dismissal of Mrs. Higgs, an employee of Farmor’s School, working, when the circumstances of her dismissal arose, in a role that had her engage with both parents and students. Mrs. Higgs, a Christian holding certain gender-critical beliefs, had used her personal Facebook page to repost posts (at [10], [12]), on occasion adding her own comments (at [10]), arguing that gender is binary and not “fluid” and that same-sex marriage cannot be equated with traditional marriage between a man and a woman, making it wrong to teach anything different to primary school children. Although her profile used her maiden name, a parent who had seen the posts lodged a complaint with the school. Mrs. Higgs was interviewed, suspended pending further investigation and, ultimately, summarily dismissed for gross misconduct.

The claims Mrs. Higgs raised before the Employment Tribunal (ET) on direct discrimination (EA, s. 13) and harassment (EA, s. 26) on the ground of religion or belief were dismissed. Her appeal to the Employment Appeal Tribunal (EAT), however, was allowed and the claim remitted. The EAT found that the ET had failed to construe properly the EA 2010 in light of Articles 9 and 10 of the ECHR (respectively, on freedom of thought, conscience and religion and on freedom of expression), in accordance with section 3 of the HRA and the relevant principles introduced in Page at [68]. That meant that, first, expression of belief (ECHR, art. 9(2)) should fall within the protected scope of section 13 of the EA, which the ET had failed to consider; and, second, that the ET had also failed to assess whether the manner by which Mrs. Higgs’s beliefs had been expressed was “objectionable” under the Page principles, omitting a careful ad hoc assessment which should take into account the specific context and include an analysis of claimed restrictions based on the proportionality test (Higgs [2023] EAT 89, [2023] I.C.R. 1072, at [94]).

Mrs. Higgs appealed further to the Court of Appeal (CA). Underhill L.J. gave the leading judgment, in which Bean L.J. and Falk L.J. concurred.

The CA confirmed the EAT’s main line of approach, but expanded the Page reasoning. The result is an arguably more nuanced construction of (direct) discrimination on the basis of not just belief, but the manifestation thereof.

Underhill L.J. reaffirmed his Page position that rights under the EA are not disconnected from those under the ECHR. In fact, they are “intended to be co-extensive” (at [67]–[69]). Through a purposive interpretation of the EA in light of the ECHR (HRA, ss. 3(1) and 6) and the underlying Framework Directive (EU Council Directive 2000/78/EC “establishing a general framework for equal treatment in employment and occupation”) (art. 1), the CA recalled that the notion of “belief” under section 10 of the EA should be read as encompassing the “outward-facing” conduct (at [33]) or manifestation, in accordance with Article 9(2) of the ECHR (Eweida v United Kingdom 48420/10, [2013] I.R.L.R. 231, at [80], [82]), regardless of the absence of any explicit relevant reference or distinction (at [54]) in the EA. That right, however, is qualified; relevant limitations ought to be prescribed by law and justified by the pursuit of a legitimate interest, subject to proportionality (Bank Mellat v Her Majesty’s Treasury (no. 2) [2013] UKSC 39, [2014] 1 A.C. 700, at [74]). Underhill L.J. recalled (at [35]) the point made in Eweida (at [82]) that manifestation of belief can extend to any expression or conduct insofar there is a “sufficiently close and direct nexus” connecting it to the underlying belief. He also identified the connection with Article 10 of the ECHR (at [61]–[65]) which should include freedom of speech encompassing an employee’s beliefs (at [61]), even if the opinions expressed may shock and offend (at [62]).

In finding that direct discrimination was the correct lens through which to assess Mrs. Higgs’s claim, Underhill L.J. expanded on his own prior reasoning in Page. That case had addressed another instance where the expression of an employee’s beliefs had resulted in the termination of his role in an NHS Trust. The CA had accepted that constituted direct discrimination, noting that what had been complained of was the objectionable manifestation of belief (Page, at [68], [69]). Drawing the connection to Article 9(2) of the ECHR and to the limitations of that qualified right, which are regarded as “relevant” to a claim under the EA (at [70]), Underhill L.J. confirmed Page as having introduced “a requirement of objective justification into the causation element in s.13(1)” (at [74]). He then took the opportunity to expand on the ratio (at [74]–[79]) and jurisprudential basis (at [80]–[97]) of Page.

In that regard, Higgs accepted that, though not straightforwardly, section 3 of the HRA can indeed serve as the foundation for the Page approach (at [83]), without prescribing a specific means to interpret the EA accordingly. Underhill L.J. considered the requirement under Article 9(2) of the ECHR for any limitations to be “prescribed by law” to be satisfied by the employer’s rights under the EA (at [76]). Those rights are inherently restricted by the Act not allowing any defence beyond one based on an occupational requirement (EA, s.1, sched. 9, Part I) – a point to which we return below. Page, however, can also be justified with reference to the ordinary principles of domestic construction (at [84]–[88]), including purposive interpretation of the EA. For example, Parliament, Underhill L.J. remarked, would not have intended that employers should tolerate any manifestation of belief, regardless of the form it takes (at [85]).

It is on this point that Underhill L.J. engaged with the critique that the Page and Higgs approach clashes with the express legislative construction of the EA framework, under which direct discrimination cannot be objectively justified. He acknowledged (at [92]) Advocate General Sharpston’s Opinion in Bougnaoui (at [67]) that ECtHR and CJEU approaches on direct discrimination should not be blended and that the conscious regulatory distinction between direct and indirect discrimination is a “fundamental feature” of EU law. He observed, however, that the interpretative duty under section 3 of the HRA 1998 should prevail, highlighting the “uniqueness” of expression of belief that calls for a more nuanced approach. He also noted the exception of age as a protected characteristic for which objective justification of direct discrimination is statutorily allowed. Respectfully, however, section 3 of the HRA introduces (purposive) interpretative powers; it does not allow for the effective amendment of explicit statutory norms. The distinction between direct and indirect discrimination and the different scope of relevant defences left to employers in both the EA and the Framework Directive constitutes such a clear legislative choice that might lie beyond the scope of section 3 powers. As Underhill L.J. himself acknowledged, where Parliament wanted to introduce an exception, it expressly did so.

In his meticulous approach Underhill L.J. did review (and dismiss) alternative approaches that could have avoided circumventing the direct discrimination framework. For example, he considered less appealing (and less protective) a possibly more principled ECHR-based approach that relies on an abuse of rights-based reasoning (ECHR, art. 17), whereby an objectionable manifestation should not be considered as falling within the protective scope of “religion or belief”. Similarly, he dismissed addressing manifestation cases through the lens of indirect discrimination as inadequate (especially regarding prohibition of proselytisation of particular religious connotation). However, it might be that those gaps outweigh the risks of a contra legem interpretation of section 13 of the EA. If accepted, why shouldn’t such a purposive interpretation of statute in line with the Convention be fully applied in other areas, such as Part X of Employment Rights Act 1996 on unfair dismissal? Consider the circumstances of a case Underhill L.J. does touch upon, Smith v Trafford Housing Trust [2012] EWHC 3221 (Ch), where an employee expressed controversial views on his personal Facebook page. On an interpretation of section 98(4) of the Employment Rights Act 1996 in the light of Article 10 of the ECHR (freedom of expression), should we infer that, under section 10(2) of the ECHR an employer might only consider dismissal insofar as the form the expression of speech took was disproportionately (and objectively) objectionable, effectively reading proportionality into the concept of “reasonableness”? That would be a familiar approach in jurisdictions where dismissal is considered the ultima ratio rather than one of the multiple options within a band of reasonable responses available to the employer (Iceland Frozen Foods Ltd. v Jones [1983] I.C.R. 17). It is dubious whether courts would be open to such an approach, given their long-standing resistance to any change to the band test (see Turner v East Midlands Trains Ltd. [2012] EWCA Civ 1470; Austin v A1M Retro Classics Limited [2020] ET 2500934/2020, at [9]; Philippa Collins, Putting Human Rights to Work (Cambridge 2022), ch. 6).

In any case, the approach Underhill L.J. adopted allowed for a careful balancing of Mrs. Higgs’s rights under section 3 of the EA and Article 9(2) of the ECHR against the employer’s right not to have to tolerate objectionably expressed beliefs that risk infringing on his rights or the rights of others (at [120]ff.). Under no terms can an employer dismiss their employee simply for expressing views the employer considers offensive or objectionable. The issue might arise only in relation to how those views were expressed (at [135], [136]). The meticulous application of proportionality and the attention paid to the context, features and the details of the form Mrs. Higgs’s manifestation of belief took (at [158]–[166]) are to be applauded and hopefully will serve as an example to future cases.

Ultimately, Higgs serves as a warning to employers against making sweeping assumptions about the words of their employees (at [151]) and inferring discriminatory attitudes. Further, due to the complex interplay of conflicting rights and engaged norms, the tribunal’s assessment of both the employee’s behaviour and the employer’s response cannot rely on a set of catch-all predefined principles and tests (Higgs EAT, at [93] (Eady J.), [114] (Underhill L.J.)). It needs to be extremely careful, nuanced, based on the specific context and circumstances and, hence, arguably not starting from a position of deference towards the employer.