Discrimination and Manifestation of Belief: Higgs v Farmor’s School [2023] EAT 89

Abstract

This paper analyses the case of Higgs v Farmor’s School, a decision of the Employment Appeal Tribunal concerning unlawful discrimination on the basis of the manifestation of protected philosophical beliefs. It discusses the relationship between human rights standards and discrimination law standards in the interpretation of direct discrimination on grounds of religion or belief. While this decision goes a long way towards providing guidance on how this interaction is to be parsed out in the context of discrimination law, it nevertheless leaves certain important questions open. Finally, the paper argues that much of the discussion of proportionality around the censorship of protected belief manifestation is misconstrued. It is commonly accepted without question that the legitimate aim pursued by censorship is the protection of the rights of others. Yet in the cases dealing with manifestation such as this, there is an extremely remote threat to rights, if one exists at all. The expression of views that some take offense to is not a human rights violation. Rather, censorship of such views is better described as aimed at the protection of morals; the enforcement of speech codes or workplace standards in order to maintain a particular ethos or atmosphere of professionalism. There is then an interesting question which arises: would the choice of justification grounded in protecting morals over the rights of others affect the intensity of the proportionality assessment? There is a plausible argument that attempts to justify infringement on the exercise of fundamental rights by reference to a desire to impose a moral code, unconnected to the rights of others, would attach more intensive scrutiny. If this is true, it is incumbent upon courts not to accept at face value that employment speech codes are necessary to protect the rights of others, certainly not without more searching analysis of which rights in particular are claimed to be infringed by a failure to mandate speech. This is of particular salience given that courts have repeatedly stressed that the right to freedom of expression includes the right to say things that are offensive, shocking or even disturbing.