Education Law Digest – Summer 2025: In the Tribunal/Supreme Court

Higgs v Farmor’s School and others

The Claimant (Mrs Higgs) is a practicing Christian and was employed at a School as a Pastoral Administrator and Work Experience manager.

She reposted a criticism on Facebook written by someone else and added the following comment: “Please read this! They are brainwashing our children!” and an encouragement to sign a petition. The reposted content related to the teaching in schools of same-sex relationships, same-sex marriage and gender being a matter of choice.

A parent complained to the School that the post demonstrated that Mrs Higgs held homophobic and prejudiced views against the LGBT community.

The School investigated and the parent supplied other posts where Mrs Higgs referred to gender fluidity as a “perverted vision” and said that

“the LGBT crowd with the assistance of the progressive school systems are destroying the minds of normal children by promoting mental illness.”

The School dismissed the Claimant for gross misconduct for breach of the School’s code of conduct and potential harm to the School’s reputation.

Mrs Higgs claimed discrimination due to her protected beliefs of:

• Lack of belief in gender fluidity.
• Lack of belief that someone could change their biological sex or gender.
• Belief in marriage as a divinely instituted life-long union between one man and one woman.
• Lack of belief in same-sex marriage (as contrary to Biblical teaching).
• Opposition to sex and relationship education for primary school children.
• A belief that when unbiblical ideas or ideologies are promoted, she should publicly witness to Biblical truth.
• A belief in the literal truth of the Bible, and in particular Genesis 1 verse 27: “God created man in His own image, in the image of God He created him; male and female He created them”.

An Employment Tribunal accepted that Mrs Higgs’ beliefs fell within the protection of the Equality Act 2010 but dismissed her claims of direct discrimination and harassment. It reasoned that she had not been dismissed for her beliefs but the “florid and provocative language” used in her posts which could be perceived as homophobic and transphobic, which in turn could harm the school’s reputation, making her dismissal a proportionate response.

Mrs Higgs appealed and the Employment Appeal Tribunal allowed her appeal and held that the Tribunal had failed to engage with the question of whether the School’s action was because of, or related to, the manifestation of her beliefs, and should have considered whether there was a sufficiently close or direct nexus between her protected beliefs and her Facebook posts. Finding that the Tribunal had also failed to carry out a proportionality assessment of the School’s actions against Mrs Higgs’ rights to freedom of belief and freedom of expression, the case was remitted the case to the Tribunal for further consideration.

Mrs Higgs appealed because she believed there was no need to remit the case and on the findings of fact her claim should succeed.

The Court of Appeal upheld Mrs Higgs appeal and held that:

• Mrs Higgs’s dismissal was an act of direct discrimination and unfair.
• Where a dismissal is motivated by the objectionable way in which a belief is expressed, an employer can only lawfully dismiss where it can show that dismissal was an objectively proportionate response. Although the School was entitled to object to the posts because of the offensive language towards gay and trans people, and the context of sex education in schools was relevant to the employee’s work, its decision to dismiss was “unquestionably a disproportionate response”. It was based on concerns about potential future reputational damage. However, even where the risk of reputational damage is shown, an employer’s interference with an employee’s right to express their beliefs must still be proportionate. The proportionality of its interference will depend on whether the views are expressed on matters central to its business, the way in which the beliefs are expressed and whether the views could be imputed to the employer.
• The general legal position is that it is unfair to dismiss an individual solely for holding a religious belief that an employer may disagree with. However, if the way these views are expressed has the potential to harm others, dismissal can be considered a proportionate response.
• In this case, Mrs Higgs mainly shared and quoted from other sources when expressing her views on her private Facebook account. At no point during the course of her employment had she expressed her opinions or discriminated against any pupils as result. As a result, the School’s decision to dismiss the Claimant was unfair and disproportionate, as neither the language used nor the potential reputational damage were significant enough to justify such an action.

Stay up to date with:

• Trending Topics
• Latest Insights
• Upcoming Events
• Company Updates

Follow us on LinkedIn

Take Me There

Vanhove v Secretary of State for Education

The Appellant (Kanchana Vanhove) was a headteacher at a primary school who was accused of making unauthorised purchases using school’s funds. The unauthorised purchases included amazon purchases paid for by the school’s bank account and inappropriate or unauthorised expense claims. The Appellant maintains that the purchases were for the benefit of the school. Purchases included martini glasses, champagne flutes and a giant Jenga.

Following a recommendation by the Professional Conduct Panel (“the Panel”) of the Teaching Regulation Agency (“TRA”), a prohibition order was imposed on her by the Secretary of State for Education (“SSE”). The prohibition order prevents the Appellant from teaching in England indefinitely, with a provision for review after two years.

The Appellant’s appeal was heard in the High Court. The basis of the appeal was that the Panel’s approach was fundamentally flawed, resulting in serious miscarriages of justice with findings of fact inconsistent with the evidence and based on speculation. The Appellant further argued that the Panel had improperly shifted the burden of proof onto her, requiring her to prove her innocence rather than the TRA proving her guilt.

After hearing the evidence, Mr Justice Sweeting upheld the prohibition order confirming that “The Appellant’s appeal is essentially an attack on the Panel’s finding of fact…she does not identify any legal errors made by the Panel, nor any serious procedural irregularity in the conduct of the hearing.”

Further, Mr Justice Sweeting confirmed the following:

• The Panel had sufficient evidence before it to reach the conclusions that it did.
• The Panel took a careful and item by item approach to the allegations which the TRA was required to prove to the applicable standard.
• The Panel was entitled to make the findings of fact which it did about the Appellant’s credibility and prefer the evidence of the other witnesses.
• The Panel was entitled to draw inferences from the evidence, and the inferences that it drew were reasonable in all the circumstances.
• The Panel did not reverse the burden of the proof. The Panel was correct to find that the Appellant had a duty to act honestly and with integrity, and that this duty included ensuring that all purchases made on behalf of the school were for the benefit of the school.
• The Panel’s approach to hearsay evidence was appropriate.
• The Panel gave adequate reasons for its decisions.
• In short, the Appellant has not persuaded me that the Panel’s decision was wrong.

The Appellant’s entitlement in due course to seek a review remains in force.

For Women Scotland Ltd v The Scottish Ministers

In the case, the Supreme Court were tasked with determining the meaning of the words “man”, “woman” and “sex” in the Equality Act 2010.

This case arose in response to appeals by For Women Scotland Ltd to the definition of “woman” in the Gender Representation on Public Boards (Scotland) Act 2018 and associated guidance. Originally, the 2018 legislation defined a “woman” as including people: (i) with the protected characteristic of gender reassignment, (ii) living as a woman; and (iii) proposing to undergo / undergoing / who have undergone the gender reassignment process. However, upon challenge by For Women Scotland Ltd, the Inner House found that this statutory definition was unlawful as this area of law is reserved to UK Parliament.

Following the above decision, the guidance on the definition of “woman” in the Gender Representation on Public Boards (Scotland) Act 2018 was updated to mean the same as the definition of “woman” in the Equality Act 2010, which states that a “woman” is a “female of any age”.

The new guidance also stated that a person with a Gender Recognition Certificate recognising their gender as female is considered a woman for the purposes of the Gender Representation on Public Boards (Scotland) Act 2018.

For Women Scotland Ltd appealed this updated guidance on the basis that “woman” under the Equality Act 2010 refers to biological sex which means that trans woman with a Gender Recognition Certificate are not considered a woman under the Equality Act 2010 and subsequently the Public Boards (Scotland) Act 2018. The Scottish Ministers contest that the definition under the Equality Act 2010 refers to “certified sex” meaning it includes trans women with a Gender Recognition Certificate.

The Supreme Court held that the terms “man”, “woman” and “sex” refer to biological sex for the following reasons:

• History of the Act – the Equality Act 2010 amended and consolidated the Sex Discrimination Act 1975 and the Sex Discrimination (Gender Reassignment) Regulations 1999. In the Sex Discrimination Act 1975, Parliament used the words “man” and “woman” throughout the act to distinguish between groups on the basis of sex. Therefore, there is no doubt that Parliament intended the words “man” and “woman” to refer to biological sex. Further, the 1999 Regulations did not amend the meaning of “man” and “woman” in the 1975 Act, rather they amended the 1975 act to include a prohibition on discrimination on the ground of gender reassignment. The Equality Act 2010 enacted group-based protections based on a range of characteristics including sex and gender resignation. There was no indication that the Equality Act 2010 modified the meanings of “man”, “woman” and “sex” from the 1975 act and therefore these definitions remained as referring to biological sex and trans people had the protected characteristic of gender reassignment;
• Clarity and consistency – as a matter of ordinary language, the provisions relating to sex discrimination can only be interpreted as referring to biological sex e.g., the provisions relating to pregnancy and maternity are based on the fact of pregnancy and giving birth to a child. As a matter of biology, only biological women can become pregnant. Therefore, these provisions are unworkable unless “man” and “woman” have a biological meaning. Interpreting “sex” as certified would cut across the definitions of “man” and “woman” and thus the protected characteristic of sex in an incoherent way when it is important that the Equality Act 2010 is interpreted in a clear and consistent way;
• Sub-group – a certified sex interpretation would also create two sub-groups within those who share the protected characteristic of gender re-assignment, giving trans people who hold a Gender Recognition Certificate greater rights than those who do not. This could also create practical issues for those seeking to perform their obligations under the Equality Act 2010 (such as employers) who cannot lawfully ask if someone holds a Gender Recognition Certificate;
• Existing protections – A certificated sex interpretation would also weaken the protections given to those with the protected characteristic of sexual orientation for example by interfering with their ability to have lesbian-only spaces and associations; and
• Single sex provisions etc – provisions that require a biological interpretation of “sex” in order to function coherently include separate spaces and single sex services (e.g., changing rooms and medical services), communal accommodation, and single sex higher education institutions. Similar confusion / impracticability arises in the operation of provisions relating to single sex characteristic associations and charities and women’s fair participation in sport.

However, in reaching the above conclusion and rejecting the certified sex approach, the court emphasised that their interpretation does not deprive trans people of legal protection as they are protected under the characteristic of gender reassignment. Furthermore, they are also able to invoke the provisions on direct discrimination and harassment, and indirect discrimination on the basis of sex (a trans woman can claim sex discrimination because she is perceived to be a woman).

This case is an important reminder of the issues faced by the court when interpreting legislation and the need for them to balance sometimes competing interests.