Why is Sex Matters intervening in the case of Kristie Higgs?

Sex Matters, the Equality and Human Rights Commission, the Church of England Archbishops’ Council, the Free Speech Union and the Association of Christian Teachers are all separately intervening in a belief-discrimination case, Higgs v Farmor’s School, being heard at the Court of Appeal this week. The appeal concerns the question of how courts and tribunals should approach religious or philosophical belief-discrimination cases concerning the “manifestation” of belief – when people are treated less favourably because they have said or done something expressing their protected beliefs. The Court of Appeal is the second-highest court in England and Wales, so this case is important. 

The underlying case (which has been supported by the Christian Legal Centre) concerns Kristie Higgs, who was an administrator and work-experience manager at a Church of England secondary school. In 2018 she made posts on her personal Facebook page sharing content about relationships, sex and health education (RSHE) at primary schools (which her children were attending). She posted material that was critical of teaching about LGB relationships and about transgender identity. She acted based on her Christian faith but her posts included “florid” language in statements such as “Please read this! They are brainwashing our children!” and “The LGBT crowd with the assistance of the progressive School systems are destroying the minds of normal children by promoting mental illness”.

The school received an email complaining about her which said:

 “… a member of your staff who works directly with children has been posting homophobic and prejudiced views against the lgbt community on Facebook … [and] that this individual may exert influence over the vulnerable pupils that may end up in isolation for whatever reason. I find these views offensive and I am sure that when you look into it, you will understand my concern…”

Higgs was suspended, questioned for six hours and dismissed for gross misconduct on the basis of the posts referred to above.

She brought a claim for belief discrimination based on her lack of belief in “gender fluidity” and that someone could change their sex, her Christian belief in marriage as a divinely instituted life-long union between one man and one woman and her lack of belief in same-sex marriage. She also pleaded a belief in the literal truth of the bible and that “when unbiblical ideas or ideologies are promoted, she should publicly witness to Biblical truth”.

The employment tribunal recognised that these beliefs qualify for protection against discrimination and that Kristie Higgs denied “being homophobic or transphobic”. It said it could see no reason why the belief professed by Mrs Higgs should necessarily result in unlawful action by her and that “there was no reason to believe she would behave towards any person in a way such as to deliberately and gratuitously upset or offend them”.

But it dismissed her claims of discrimination and harassment (this was in 2020, before gender-critical beliefs had been recognised as “worthy of respect in a democratic society”), saying that the school had taken action not based on Higgs’ actual beliefs but on the way she expressed them and the school’s perception:

“In short, that action was not on the ground of the beliefs but rather for a completely different reason, namely that as a result of her actions she might reasonably be perceived as holding beliefs that would not qualify for protection within the Equality Act (and, as we say, beliefs that she denied having).”

Higgs appealed, and the Employment Appeal Tribunal (EAT) upheld her appeal. It found that the employment tribunal had made an error in law by not focusing first on the legal question of whether the actions that Higgs undertook (her posts on Facebook) were in fact a “manifestation” of her belief (they were).

The EAT said that the employment tribunal should then have gone on to apply another test to determine whether the school’s response was unlawful. It said the way to do this was to apply the human-rights test of assessing whether the school’s actions “were prescribed by law, and were necessary for the protection of the rights and freedoms of others”. 

It therefore sent the case back to the Employment Tribunal with guidance that it should weigh up Kristie Higgs’ rights to freedom of speech and freedom of belief against the “rights of others” which the school said it was protecting. This followed arguments that had been introduced by an intervenor in the case, the Church of England Archbishops’ Council, which does not support the Christian Legal Centre.

The EAT, encouraged by the Archbishops, also provided guidance not only to assist the employment tribunal, but also more generally to inform employers and employees “as to where they stand on issues arising from the manifestation of religious or other philosophical beliefs”.

It adopted a rubric provided by the Archbishops which said that employment tribunals should give regard to: 

1. the content of the manifestation
2. the tone used
3. the extent of the manifestation
4. the worker’s understanding of the likely audience
5. the extent and nature of the intrusion on the rights of others, and any consequential impact on the employer’s ability to run its business
6. whether the worker has made clear that the views expressed are personal, or whether they might be seen as representing the views of the employer, and whether that might present a reputational risk
7. whether there is a potential power imbalance given the nature of the worker’s position or 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
9. whether the limitation imposed is the least intrusive measure open to the employer. 

This framework is already being used in practice, following the Higgs EAT judgment in June 2023, most recently in the independent review of the Open University following the Jo Phoenix case. It drives duty-bearers and rights-holders away from a commonly held understanding based on the Equality Act towards a vague “sniff test” of acceptability and politeness which leads to the expression of disfavoured beliefs being discouraged and punished, with a chilling effect on freedom of expression. 

Where did the EAT go wrong?

Although Kristie Higgs technically won the EAT appeal, she is appealing the decision to send the case back to the ET rather than substituting a new determination. She contends that: 

“The EAT’s reasoning and the guidance offered at the end of the judgment diminish the protection of freedom of speech, and there is a real risk that ETs reading the guidance will be confused as to the true position established in the case law under Article 9 and/or Article 10 ECHR [European Convention on Human Rights].”

The reason why Sex Matters and the other organisations have intervened is that we agree with her – we think the EAT went wrong in applying the law. The guidance it gave is unworkable and does not align with the Equality Act 2010. Our submission, written by Akua Reindorf KC with input from Dr Michael Foran of Glasgow University, argues that the EAT’s approach is “unwieldy and incapable of being understood by anybody but the specialist lawyer”, and that it is wrong in law. 

We argue that the EAT took a wrong turn in telling the employment tribunal to apply the human rights proportionality test, instead of straightforwardly using the tests for unlawful discrimination and harassment provided in the Equality Act.

The human rights to freedom of belief and freedom of expression are important foundations of society, and they underpin the Equality Act, but they do not directly apply between individuals (known as “horizontal effect”). Rather they protect individuals “vertically” from top-down oppression by an overbearing state. To allow for balancing rights, the human right to freedom of belief is qualified by a second paragraph which allows states to enact laws for the purposes of public safety, the protection of public order, health or morals and the protection of the rights and freedoms of others, which limit the manifestation of belief. There is a similar qualification on the right to freedom of expression.

Article 9

Freedom of thought, conscience and religion

• Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching practice and observance.
• Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

The EAT tried to apply this qualification directly to the relationship between Kristie Higgs and her employer, saying the employer’s actions would not be unlawful if they were a proportionate means of achieving the legitimate aim of protecting the rights of others.

But employers are not states. Rather, they are subject to the Equality Act. And the Equality Act does not contain such a generalised proportionality test.

In practice employers routinely and lawfully limit employee’s freedoms in all kinds of ways that would be human-rights abuses if done by the state: requiring them to be at work at particular times or on particular days, to wear a uniform, not to talk on the shop floor, to engage with customers, clients and service users in particular kinds of ways, to handle particular foodstuffs. These rules can constrain people’s freedom of expression and the expression of their religious and philosophical beliefs without breaching their human rights, because the ECHR does not apply directly to the employment relationship.

The Equality Act and human rights

Sex Matters argues that the EAT went wrong in telling employment tribunals to directly apply the human-rights proportionality test rather than sticking to applying the Equality Act (and if necessary checking the results against a human-rights test).

We argue that the way to square the circle between the ECHR and the Equality Act is to recognise that the human rights balance between employer and employee (and anyone else that may have rights such as other employees and customers) is built into the Equality Act.

• It is unlawful for an employer to directly discriminate against an employee because of their belief: but only if the belief is “worthy of respect in a democratic society” (that is, it does not seem to destroy other people’s fundamental human rights).
• Employers can impose general, neutral rules which do not single out particular religions or beliefs, such as workplace codes of conduct and social-media policies.
• If a workplace rule or policy disadvantages people with a particular belief they may claim indirect discrimination. The Equality Act provides for justification here. The rule may be lawful if it is a proportionate means to a legitimate aim (which does not have to be one of the human-rights justifications available to states; it may be just a commercial or other aim of the employer).
• There is no general provision to justify direct discrimination. And we argue that most cases of belief discrimination that are coming up in courts and tribunals at the moment are direct discrimination – the true objection is to the belief, and not to the particular way (or time or place) the person manifested it.
• But the Equality Act does have specific exceptions that allow employers to uphold a particular ethos or value. For example, a Catholic school can require that key teaching staff are practising Catholics and that support staff respect the religious ethos. 

An anti-abortion charity which refuses to employ a person on the basis that he has posted pro-choice content on social media can argue that not publicly undermining the aims of the organisation is an occupational requirement. But if his job is, say, as a cook in the charity’s staff canteen, then the charity is less likely to be able to satisfy the proportionality requirement than if his job is a public-facing fundraising post. 

Similarly, the exceptions in paragraph 2 of Schedule 23 of the Equality Act (concerning organisations relating to religion or belief) would in principle allow an “affirmation” support group for parents of trans-identifying children (set up for that purpose) to deny inclusion to a mother who disagreed with this approach. The members of the group might find gender-critical arguments and the non-affirmation approach offensive, but this does not make them “objectionable” in a more general sense.

Kristie Higgs’ concerns about gender-identity affirmation in schools, expressed in “florid” language in a Facebook post in 2018, were not only an expression of her religious beliefs, but were also reflected in 2024 in the more carefully written Cass Review.

The question of what makes the manifestation of a particular belief legally “objectionable” is specific to context – the aims of the organisation and the person’s job. It is not a sweeping and vague moral judgment to be made by employment tribunals, archbishops or Stonewall.

Sex Matters’ submission is that the Equality Act as a whole is already compliant with the European Convention on Human Rights and that employment tribunals should stick to applying the Act. 

The legitimate interests of everyone will be better protected if people can be persuaded to stop vaguely swinging the cudgel of “my human rights” and instead follow and understand the specific domestic law that is designed to protect them.