Higgs v. Farmor’s School
Introduction
There is no overt reference in the Equality Act 2010 to the protection that exists (per Article 9.1 ECHR) for those seeking to manifest (in some way) their religion/belief. In light of the recent decision in Higgs v. Farmor’s School [2025] EWCA Civ 109 the question arises: is it time for a new form of religious/belief discrimination, equivalent to the protection that is provided to those with a disability pursuant to s.15 EqA 2010?
The need for s.15 EqA 2010
The decision in Lewisham v. Malcolm [2008] UKHL 43 significantly reduced the protection that it had been believed was provided by ‘disability related discrimination’ under the DDA 1995. In essence: Mr Malcom’s defence to possession proceedings failed because, whether or not his act of sub-letting of the premises (which was not permitted per his tenancy agreement) ‘related’ to his disability, a non-disabled person who had sub-let would have been treated in the same way. The requirement for a comparator approach meant that this form of disability discrimination protection added little to that provided by the prohibition of direct discrimination – the distinction between the ‘disability’ and a ‘reason related to the disability’ did not assist, given the continued need for a comparative approach.
As a result, the Equality Act 2010 introduced s.15: a new form of ‘discrimination arising from disability’ in which there was no requirement to establish ‘less favourable’ treatment, but which allowed for justification. The explanatory notes to the EqA 2010 confirmed that this new form of protection was “aimed at re-establishing an appropriate balance between enabling a disabled person to make out a case of experiencing a detriment which arises because of their disability and providing an opportunity for an employer or other person to defend the treatment”. It prevents employers from subjecting employees to unfavourable treatment because of ‘something arising from their disability’ unless the treatment can be objectively justified as a “proportionate means of achieving a legitimate aim”.
Relevant to the subject matter of this article: the legislature opted to provide this balance by way of a new form of discrimination, rather than by stretching, re-defining or providing exceptions to s.13 direct disability discrimination (treating someone ‘less favourably because of their protected characteristic’).
The problem, vis-à-vis religion/belief
It appears that something not wholly dissimilar to the Malcolm difficulty has arisenin the area of direct religious/belief discrimination, in cases where the adverse treatment complained of is said to be because of a manifestation of religion/belief.
Per Articles 9.1 and 10.1 of the ECHR, an individual has a fundamental right to ‘manifest’ their religion/belief (bearing witness in words and/or deeds) and a fundamental right to exercise freedom of expression – albeit these rights are subject to the potential for lawful limitation/interference by virtue of Articles 9.2 and 10.2. Therefore, unlike the freedom of thought and conscience (also protected per Article 9.1), which is absolute and unqualified, the freedom to manifest a belief by conduct (whether by words, clothing, appearance, etc) is a ‘qualified’ right. It can be limited, so long as the limitation is (i) prescribed by law, and (ii) justified (necessary and proportionate) by reference to other legitimate interests as specified in Article 9.2, including the “protection of the rights and freedoms of others”. Article 10.2 contains a similar qualification. By this means, there has to be a balancing between the rights of one individual (to manifest/express) with the rights of others (individually or collectively) who may be affected by the way in which a belief is manifested.
Whilst s.13 EqA 2010 (combined with s.4 and s.10) doesn’t explicitly refer to/protect ‘manifestation of belief’, it is to be read as prohibiting less favourable treatment on such grounds[1]. There can be no doubt this is important: for many adherents, manifestation of one’s belief(s) to others is an integral part of the religion/belief itself[2]. The more controversial or unpopular the belief being manifest, the greater the need for protection. As with freedom of speech: “freedom only to speak inoffensively is not worth having”[3] and exceptions therefore must be narrowly interpreted and their necessity ‘convincingly established”[4]. The dividing line between objecting to the expression of a controversial belief (which is protected) and objecting to the reaction it draws from others (which is not) may be a fine line indeed. In order to avoid a coach and horses being driven through the protection afforded by Article 9.1, it is vital that any interference with the right to manifest a belief satisfies the test for such limitations (per Article 9.2) and thus is ‘convincingly established’.
The question therefore arises: how are those qualified rights (to manifest belief/to express) protected by way of s.13 EqA 2010 where an employer is able to prove that the treatment complained of (often dismissal) was not because of the religion/belief itself or even the exercise of freedom of expression/manifestation of the religion/belief, but was because of the way in which the religion/belief was manifested and/or expressed, or the effect that the manifestation had or might have on others – in other words, where the reason for the treatment was something ‘related to’ or ‘arising from’ the religion/belief rather than the religion/belief itself?
Put another way: how is the requirement that any interference with the fundamental right to manifest a belief should be no greater than is allowed by Article 9(2) and 10(2) ECHR to be imported into the test for direct discrimination? Specifically, how should a Tribunal factor into s.13 the requirement that the interference with the right to manifest must be “necessary in a democratic society”, which has been confirmed to include proportionality considerations and application of the four-stage test of proportionality in Bank Mellat v. HM Treasury (no.2) [2013] UKSC 39[5]? That is a test which can be summarised as considering whether the interference is a ‘proportionate means of achieving a legitimate aim’ – the component parts of which are familiar to those dealing with the justification defence of s.15(2) EqA.
The current solution (the test of ‘objective justification/proportionality’ per Page v. NHS Trust Development Authority)
In areas of law where conduct by an employee attracts legal protection (e.g. protected disclosures, protected acts) it has been recognised that Tribunals may be required to decide whether the real cause of the way the employee was treated by the employer was the protected conduct itself or some “properly separable feature of it”[6]’ (the ‘separability principle’); for example the offensive or abusive manner in which the disclosure is made or the act is done (like hacking into a computer system to prove its vulnerability[7]). “Common sense and fairness dictate that tribunals should be able to recognise such a distinction and separate out a feature (or features) of the conduct relied on by the decision-maker that is genuinely separate from the making of the protected disclosure itself. In such cases …. the protected disclosure is the context for the impugned treatment, but it is not the reason itself”[8].
If the reason for the dismissal, let’s say, is something not truly separate from the protected conduct of the employee (i.e. it is so closely connected with the protected conduct that a distinction cannot fairly and sensibly be drawn) then the employer’s action against the employee will be found to be because of the protected conduct. Tribunals are encouraged to be “slow to recognise a distinction between the complaint and the way it is made save in clear cases”[9].
Applying the ‘separability’ principle to s.13 religion/belief discrimination cases: employers often successfully contend that the real reason for the impugned treatment (often dismissal) is not the religion/belief, and not even the manifestation of it, but rather a separable feature – usually: the way it is expressed, the fact that some will be offended by it, and the risk of damage to the employer’s reputation. If this, without more, were sufficient to defeat a s.13 claim those expressing/manifesting controversial and unpopular beliefs are likely to find their Article 9.1 rights unprotected.
In Page v. NHS Trust Development Authority [2021] EWCA Civ 255, the CA confirmed that the separability principle/approach applied to s.13 claims (and, by extension, to harassment cases[10]): but it also clarified the ‘something more’ that is required. It held that a s.13 claim will be defeated where it can be proved that the reason for the act complained of/dismissal was the fact that the employee had manifested their belief “in some particular way to which objection could justifiably be taken” [11] (emphasis added). The CA confirmed that the employer’s action against the employee (e.g. sanctioning or dismissing them) had to be justified in the circumstances: if not justified, then the employer’s objection to the way the belief was manifested by the employer “cannot sensibly be treated as separate from an objection to the belief itself.”
In Higgs (paragraph 73) Underhill, LJ confirmed that the ratio of Page is that
“adverse treatment in response to an employee’s manifestation of their belief was not to be treated as having occurred “because of” that manifestation if it constituted an objectively justifiable response to something “objectionable” in the way in which the belief was manifested: it thus introduced a requirement of objective justification into the causation element in section 13 (1).”
It characterised this, as: permitting “a defence of objective justification substantially corresponding to the terms of Article 9.2 of the Convention” (paragraph 86) and (at paragraph 87) stated that “where the act complained of was objectively justified it should not be treated as being done “because of” the manifestation in question”.
Only insofar as is relevant to the subject matter of this article; further clarification was (at paragraph 75) provided as follows: in deciding whether the action taken against the employee was because of the manifestation of belief (protected) or alternatively what was perceived by the employer to be the objectional way in which it was manifested: it is best practice to consider each of the four steps of the Bank Mellat ‘proportionality’ test, but there is a considerable overlap between each step.
In explaining (obiter) the jurisprudential basis for the ratio of Page and the importation of the objective element (from Article 9(2) of the Convention) into s.13 EqA 2010, the Court of Appeal considered that such importation is necessary (and required by virtue of s.3 Human Rights Act 1998) in order to render s.13 compatible with Convention rights. It considered that it is “not necessary to identify a precise means of re-drafting the Act to achieve that result”. A number of ways of ‘re-drafting’ the Act were considered. However, the Court of Appeal went on to find that, in any event, the ratio of Page (and the importing of a qualification not appearing in the words of the Act) was justified on ordinary principles of construction.
Various parties in Higgs raised fundamental objections to the Page approach/ratio. The Court of Appeal recognised that generally speaking (subject to some exceptions, such as direct age discrimination) justification of direct discrimination is not permitted but noted that “direct discrimination in manifestation cases is (uniquely) different from discrimination on the ground of other protected characteristics (and indeed from simple belief discrimination) because it is based …. not on the possession of the characteristic as such but on overt conduct, which thus has the potential to impact on the interests of society and the rights and freedoms of others”. That put this type of case, it found, “in a special category which requires a more flexible approach”.
The parties in Higgssuggested three alternatives to the Page approach – all of which were rejected because they were inconsistent with Page (by which the Court of Appeal was bound) and because none of them was found to be “obviously preferable” to the ratio in Page. Those alternatives were:
Alternative (1): require claimants to rely on a s.19 EqA claim of indirect discrimination, i.e. proving that the employer’s actions amounted to a discriminatory PCP that could not be justified. However, Underhill LJ pointed out that direct and indirect discrimination claims are mutually exclusive, and not all PCP’s in this context could be sensibly described as “apparently neutral”.
Alternative (2): stick with the ‘conventional severability approach’ (without reference to objective justification) – but it was accepted that this would not afford protection in cases where the treatment complained of was genuinely because of the way the employee had manifested their belief but was a disproportionate reaction by the employer. For example, perverse dismissals because of an overly inflammatory reaction by the employer to the manner in which a belief was manifested would not be caught. This would fail to import the ‘proportionality’ limitation (in Article 9.2) to the ability of the employer to interfere with the employee’s right to manifest a belief and so not provide adequate protection of the right to manifest a religion/belief.
Alternative (3): alter the definition of the protected characteristic, so that an objectionable manifestation of a belief would not be protected. However, this would still fail to afford protection against disproportionate reactions by the employer (as per alternative (2) above).
Another alternative?
There is clearly some unease with the current situation/solution (Page). Manifestation of belief cases introduce unique difficulties into the s.13 test, because of the content of Article 9.2 and the fact that that which is protected is the conduct of manifesting (rather than some innate characteristic), which may have a direct impact on others. The jurisprudential basis of the ratio in Page is not clear/straight-forward, and ultimately requires a highly ‘purposive’ interpretation. Applying the ratio of Page is not necessarily easy in the absence of clear statutory wording.
It might be possible to re-write s.13 to add in a justification defence, but it would need to do so only in relation to religion/belief discrimination and, furthermore, only in relation to the right to manifest.
Another alternative would be the introduction of an equivalent of s.15 EqA in relation to the manifestation of religion/belief. This would, of course, have to be the work of Parliament not the courts. However, with careful drafting, it should be possible to ensure that employees are protected from unfavourable treatment because of their manifestation of religion/belief[12], whilst ensuring that employers are able to defend such cases on the basis that their action against the employee was justified as a proportionate means (as per the four-stage test in Bank Mellat) of achieving one of the legitimate aims (‘interests’) specified in Art 9.2. This would give employees obvious and clear Article 9.1 protection by way of express statutory language, whist also giving statutory prescription for the ability of employers to interfere with the right to manifest. That latter statutory prescription would also avoid any doubt about the ‘prescribed by law’ requirement in Article 9.2[13].
Doubtless there may be some unforeseen (at least by this author) down-sides to such a solution; but query whether they would be worse than the current state of affairs whereby s.13 direct religious/belief discrimination seems to mean much more than appears on its face.
[1] Higgs v. Farmor’s School [2025] EWCA Civ 109), paragraph 54.
[2] Kokkinakis; Leyla Şahin v. Turkey; Eweida v. UK [2013] IRLR 231
[3] Redmond-Bate v. DPP [1999] EWHC Admin 733, paragraph 20
[4] Vajnai v. Hungary [2008] ECHR 1910
[5] Higgs at paragraph 34
[6] Higgs paragraph 57
[7] Bolton School v. Evans [2006] IRLR 500 EAT, [2006] EWCA Civ 1653.
[8] Kong v. Gulf International Bank (UK) Ltd [2022] EWCA Civ 941 at paragraph 56.
[9] Martin v. Devonshires Solicitors [2011] ICR 352.
[10] cf: Higgs paragraph 79
[11] Page paragraph 68
[12] Taking account of the relevant caselaw (such as Eweida v. UK [2013] IRLR 231) on what does and does not qualify as a ‘manifestation’ of a belief
[13] Underhill LJ was forced to reference “the employer’s rights under the employment contract” as providing the necessary legal framework to satisfy this requirement of the Article 9.2, cf: paragraph 76 – which is not an obvious answer because ‘prescribed by law’ might more naturally be read to refer to something prescribed by legislation, rather than private agreement/contract.
