Kristie Higgs v Farmor's School

Hearing dates: 2 and 3 October 2024

Approved Judgment

This judgment was handed down remotely at 10.30am on 12 February 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

INTRODUCTION

The Respondent in these proceedings (to which I will refer as “the School”) is a secondary school in Fairford in Gloucestershire. At the time relevant to these proceedings the Claimant had been employed by the School for six years, latterly as a pastoral administrator and work experience manager. In the first of those roles she was responsible for overseeing students who had been removed from class for disruptive behaviour. She has two children, the elder of whom was a pupil at the School. She is a Christian.

On 26 October 2018 a parent at the School emailed the Head Teacher, Matthew Evans, complaining that the Claimant had expressed “homophobic and prejudiced views” on her Facebook page: I give details below. Following an initial interview with the Claimant, on 30 October Mr Evans asked a member of staff called Sue Dorey to conduct an investigation. The Claimant was suspended. On the basis of Ms Dorey's report, disciplinary charges were brought against the Claimant. The charges were considered at a hearing on 19 December 2018 before a panel chaired by one of the governors, Stephen Conlan. By letter dated 7 January 2019 she was summarily dismissed for gross misconduct. An internal appeal was unsuccessful.

On 15 April 2019 the Claimant began proceedings in the Employment Tribunal (“the ET”). Although she initially raised other complaints, the complaints which eventually proceeded were of (direct) discrimination and harassment, within the meaning of sections 13 and 26 respectively of the Equality Act 2010, in both cases on the ground of religion or belief.

The claim was heard by the ET (Employment Judge Reed, Mrs England and Ms Maidment) in Bristol on 21–24 September 2020. The Claimant was represented by Mr Pavel Stroilov, of Andrew Storch Solicitors, and the School was represented by Ms Debbie Grennan of counsel. By a judgment sent to the parties on 6 October 2020 the Claimant's claims of discrimination and harassment were dismissed.

The Claimant appealed to the Employment Appeal Tribunal (“the EAT”). The appeal was heard by the President, Eady J, on 16 March 2023. The Claimant was represented by Mr Richard O'Dair of counsel and the School again by Ms Grennan. The Archbishops' Council of the Church of England was given permission to intervene and was represented by Mrs Sarah Fraser Butlin. By a judgment handed down on 16 June the Claimant's appeal was allowed and the claim remitted to the ET.

Although the Claimant had to that extent succeeded in her appeal, she believes that the EAT should have gone further and have held for itself that her claim succeeded; and by an Appellant's Notice dated 7 July 2023 she appealed to this Court on that basis. Permission to appeal was given by Elisabeth Laing LJ.

By a Respondent's Notice dated 5 February 2024 the School sought permission to cross-appeal on the basis that, while it accepted that the claim had to be remitted, the EAT's formulation of the question requiring determination was erroneous. By order dated 27 March Elisabeth Laing LJ refused that permission, and she subsequently refused permission to re-open that decision.

The Claimant has again been represented before us by Mr O'Dair. The School has been represented by Mr Sean Jones KC and Mr Christopher Milsom. The Archbishops' Council has been permitted to intervene and has again been represented by Mrs Fraser Butlin (now KC). Permission to intervene has also been given to the Free Speech Union Ltd (“the FSU”), the Association of Christian Teachers (“the ACT”), the charity Sex Matters, and the Equality and Human Rights Commission (“the EHRC”), though in the case of all but the EHRC by written submissions only. They have been represented by, respectively, Mr Ben Cooper KC, leading Mr Spencer Keen, Mr Roger Kiska of Camerons Solicitors, Ms Akua Reindorf KC, and Ms Joanne Clement KC. (I should say that the EHRC's written submissions were settled by Mr Tom Cross: Ms Clement was instructed to make the oral submissions when he fell ill, and she produced helpful short supplementary written submissions.) I am grateful for the work and thought that went into all the submissions, written and oral. I am also grateful for the immaculate way in which the bundles – particularly the bundles of authorities, which were voluminous – were prepared.

THE FACTS

THE COMPLAINT AND THE POSTS

The email referred to at para. 2 above reads as follows:

“Dear Mr Evans,

I've noticed that a member of your staff who works directly with children has been posting homophobic and prejudiced views against the lgbt community on Facebook. I'm concerned 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. I'd rather remain anonymous as the person in question is … . I've attached a couple of screen shots so you can see what I'm referring to.”

The omitted words were redacted by the ET in order to preserve the anonymity of the complainant.

The attached screenshots were of the Claimant's Facebook page showing the following post, apparently made on 24 October 2018:

“**PLEASE READ THIS! THEY ARE BRAINWASHING OUR CHILDREN!** On November 7 ^th the Government Consultation into making Relationships Education mandatory in primary schools, and Relationships and Sex Education mandatory in secondary schools closes. Which means, for example, that children will be taught that all relationships are equally valid and ‘normal’, so that same sex marriage is exactly the same as traditional marriage, and that gender is a matter of choice, not biology, so that it's up to them what sex they are.

At the same time it means that expressing and teaching fundamental Christian beliefs, relating to the creation of men and women and marriage will in practice become forbidden – because they conflict with the new morality and are seen as indoctrination into unacceptable religious bigotry.

Which means that freedom of belief will be destroyed, with freedom of speech permitted only for those who toe the party line!

We say again, this is a vicious form of totalitarianism aimed at suppressing Christianity and removing it from the public arena.

***Please sign this petition, they have already started to brainwash our innocent wonderfully created children and its happening in our local primary school now***”

There followed a link to a petition organised by CitizenGo.Org, an entity which describes itself as concerned to “uphold the right of parents to have children educated in line with their religious beliefs”. The main text was not drafted by the Claimant but cut-and-pasted from another source. She had added the words between the asterisks at the beginning and the end. The account was in her maiden name (rather than the married name the Claimant used for her work at the School) and contained nothing which suggested any connection with the School; but it is clear that her identity was apparent at least to the complainant, who must have known that she worked there and of her role with children “in isolation”. I refer to this as “the first post”.

In response to an enquiry from Mr Evans about whether they had any further information, the complainant on 29 October 2018 sent another email, attaching further screenshots and saying:

“I'm aware that not everyone has liberal views like myself but I do feel that people working directly with children should refrain from posting this type of view on social media. I know of several children at Farmors who might fit into the category of person your staff member seems to find so obnoxious, friends of my children even.”

The additional screenshots were of what appear to be more than one (more recent) post by the Claimant, re-posting messages from campaigners in the U.S.A. objecting to materials used in schools there (“the re-posts”). I need not quote these in full. The following extracts sufficiently represent their gist and tone:

“While normal Americans are busy at work trying to provide for their families, liberal school systems are busy indoctrinating their children. Kindergarten and first grade children are being primed for a gender fluid society. Of course, the schools are introducing the propaganda in the name of anti-bullying campaigns,...