Discrimination law, Section 3 Human Rights Act, and the Higgs Poser – by Hugh Collins

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Both human rights law and discrimination law share a concern to ensure respect for the dignity and autonomy of individuals.  Yet they pursue those shared values on parallel tracks through separate pieces of legislation – the Human Rights Act 1998 (HRA 1998) and the Equality Act 2010 (EqA 2010).  At the core of discrimination law is a comparison between the treatment of groups.  The question is whether an individual suffered a disadvantage in comparison to others because of membership of a particular group.  In contrast, human rights law asks whether there was an unjustifiable interference with an especially important protected interest of an individual.   Because of this different focus and technique, they may reach opposite results. 

For instance, in Eweida v British Airways plc,  the applicant’s complaint that she had suffered indirect religious discrimination, because of her employer’s prohibition of the wearing of a crucifix, failed in the Court of Appeal on the ground that she was unable to show that Christians as a group were required or expected to wear a visible crucifix.  In contrast, her application before the European Court of Human Rights (ECtHR) for interference with her Convention right to manifest her religion was successful (Eweida v United Kingdom,) because the applicant, as an individual, had been prevented from manifesting her religion.  Furthermore, whereas the Court of Appeal had declared that even if there had been an adverse impact on a group, it was ‘not arguable’ (para 78) that it was unjustifiable, whereas the ECtHR held that the employer’s policy against the wearing of religious ornaments over the uniform was plainly disproportionate.  The case of Eweida reveals how discrimination law and human rights law can both apply to a dispute and clash in their outcomes. 

As well as that structural difference leading to disparate outcomes, human rights law and discrimination law have radically different scope with respect to standing before courts.  Much like any part of private law, any ‘worker’ may launch a claim complaining of discrimination under the EqA 2010 against their employer. In contrast, the HRA 1998 only makes the protection against interferences with Convention rights indirectly horizontally enforceable (unless perhaps the employer is a public authority).  This ‘indirect horizontal effect’ of human rights law typically requires courts to ensure that their interpretations of the law conform to the protections for rights mandated in the constitution or in a binding human rights treaty like the ECHR.  That is the purpose of section 3 HRA 1998.  Indirect effect greatly increases the possibility of clashes between discrimination law and human rights law, because they both have the potential to regulate horizontal claims between individuals and business organisations.

Furthermore, any employee seeking to object to an interference with their human rights must launch their claim as one for breach of an existing employment law right.  The most likely candidates are either unfair dismissal or discrimination.  As Phillipa Collins has demonstrated, the former is usually a dismal choice because the leading authorities in the Court of Appeal, such as X v Y and Turner v Midland Trains, indicate that the ‘range of reasonable responses’ test of fairness readily permits the employer to justify any interference with Convention rights, (though some decisions of the EAT such as Hill v Great Tey School, Q v Secretary of State for Justice, and Masiero v Barchester Healthcare Ltd are more rigorous); and furthermore, the courts and tribunals do not provide compensation for non-economic loss such as an affront to dignity.  Discrimination law has the advantages that compensation can be much broader and more generous, the rules on justifications available to the employer are significantly stricter, and there is no qualifying period of continuous employment.   As a result, discrimination law is often the preferred route for launching claims against interference with human rights by employers. 

Therefore, claims brought by employees for violation of their human rights at work are frequently launched as claims for discrimination, interpreted in conformity with Convention rights in accordance with s.3 HRA 1998.  The application of Convention rights to discrimination law should have three significant impacts on the interpretation of the EqA 2010. 

• The meaning of the Convention right should prevail, if interpretatively possible, over similar concepts in discrimination law, such as ‘sex’ or the phrase ‘religion or belief’, which define the characteristics of the protected groups in discrimination law. For example, in Grainger plc v Nicholson, the EAT drew on decisions of the ECtHR, together with apex courts in the UK, to provide five criteria to define the concept of a belief in the Equality Act 2010 s. 13 in accordance with the Convention right in Article 9.
• The scope of the conduct protected by an overlapping Convention right should be matched, if interpretatively possible, by modifying the scope of protection in discrimination law.  For example, as the Court of Justice of the EU recognised in Bougnaoui ECLI:EU:C:2017:204, EU:C:2017:204,  a ‘manifestation of religion’ must be included in discrimination law, even though it is not mentioned expressly in the EqA 2010 or in the underlying EU Directive, because it is part of the relevant Convention right.
• Under human rights law, if an interference with a right is justifiable for some reason such as the proportionate protection of the rights of others, an overlapping discrimination law must be modified, if necessary, to permit a similar defence of justification, even though discrimination legislation may not expressly permit any justification.   

For the most part, the UK Supreme Court has admitted those three implications of the application of s.3 HRA 1998 to the interpretation of the Equality Act 2010.  Lady Hale was the trailblazer in Bull and Bull v Hall and Preddy. A worrying exception to that trend is the recent decision in For Women Scotland Ltd v The Scottish Ministers, in which the Supreme Court concluded that the concept of ‘sex’ in the EqA 2010 always means biological sex, thereby excluding trans women (with a full Gender Recognition certificate) from protection on the ground of sex.  The indirect application of s.3 HRA 1998 seems to have been forgotten or perhaps suppressed. Would the indirect application of the Convention rights have changed the result?  Although the ECtHR in Christine Goodwin v UK, decided to protect trans women from discrimination in connection with marriage, it has not been asked whether a trans woman should be treated for all purposes as a woman.  If the ECtHR were to agree that trans women should normally be treated as women, it seems likely that proportionate exceptions designed to protect the rights of others including biological women would also be recognised.  For example, the right of biological women to privacy in the context of intimate medical or forensic investigations carried out by a trans woman doctor would probably justify restrictions on the trans woman doctor in that context.  In contrast, as in For Women Scotland Ltd v The Scottish Ministers, if the issue concerns positive action measures to promote the appointment of women to non-executive posts on the boards of certain Scottish public authorities, to permit trans women to take advantage of such measures does not appear to interfere with the rights of others, in particular biological women, to any significant degree. 

After much litigation and under pressure from thoughtful amicus briefs, the Court of Appeal in Higgs v Farmor’s School has eventually acknowledged all three implications of the application of s.3 HRA 1998 to discrimination law.  The issue in several cases in the UK has been whether any type of manifestation of a religion at work or, as in Higgs, on social media in connection with work, is part of the protected characteristic of the manifestation of a religion or belief, in which case any disciplinary action taken by an employer in response to that manifestation would amount to direct discrimination.  To avoid the conclusion that any kind of manifestation of religion or belief would provide the basis for a claim for direct discrimination, the Court of Appeal sought to distinguish between different kinds of manifestation, removing protection from those that were ‘inappropriate’ in the particular context.  This exclusion from protection was rationalised in Page v NHS Trust Development Authority. by arguing that in the case of inappropriate manifestations, any detriment imposed on the claimant was not ‘because of’ the manifestation of the belief, but ‘because of’ its inappropriateness.  Not only did this analysis fail to provide criteria for identifying inappropriate manifestations, but nor could it establish a coherent test of causation, because in every case the dismissal was ‘because of’ the manifestation of religion or belief, even if there was the additional factor that the conduct was, in the view of the court, inappropriate. 

Although Page was binding on the Court of Appeal in Higgs v Farmor’s School, Underhill LJ effectively undermined his earlier judgment by stating, (perhaps in what might be technically an obiter dictum, but voicing a principle that provides the only rational basis for the decision) that, applying HRA 1998 s. 3, an employer’s interference with a manifestation protected under Article 9(1) would always be potentially justifiable in accordance with the test of proportionality under Article 9(2).  As Underhill LJ acknowledged, the way is now clear to consider a test of justification in cases involving both direct and indirect discrimination concerned with interference with the manifestation of a belief.  In the case itself, however, the Court of Appeal demonstrated how difficult it would be to justify an interference with the manifestation of religion or belief by summarily rejecting the employer’s purported justification of dismissal for the posts on social media.   

The decision in Higgs is therefore to be welcomed because it embraces properly the interpretative obligation imposed by the HRA 1998 s.3 in connection with laws against discrimination.  In particular, it recognises that notwithstanding the sharp distinction drawn in the law of discrimination between direct and indirect discrimination, in practice a defence of justification must be available in every case of direct discrimination that engages a Convention right.  The outcome is a coherent law that asks whether the employer’s interference with the manifestation of religion or belief is for a legitimate purpose and is necessary and appropriate in the circumstances.  Just because the employer finds the employee’s manifestation of those beliefs objectionable and inconvenient does not mean that dismissal or some other kind of detriment was a proportionate interference with the Convention right. 

The Higgs case is interesting for one last reason.  It poses a broader question, which could have a significant impact in connection with the law of unfair dismissal.  In cases of unfair dismissal, the conventional analysis endorsed in X v Y is that, in connection with the test of fairness under the Employment Rights Act 1996, s.98(4), a tribunal should ask, first, whether the Convention right such as freedom of speech or religion was engaged, and then secondly, if so, whether in all the circumstances the dismissal was within the ‘range of reasonable responses’.  It seems to be believed in the Court of Appeal that the range of reasonable responses test can perfectly adequately address the issue of conformity with Convention rights including any possibility of justification. The Higgs Poser is this: if Higgs is correct that the need to modify the interpretation of laws against discrimination to bring them into conformity with human rights law can only be achieved by a two-step process that involves, first, the issue of interference with the Convention right, and second, the question of whether there was a proportionate justification for the interference, surely it follows that the conventional two-stage analysis provided by X vY in the law of unfair dismissalmust be wrong? 

The correct approach must be to consider, first, whether the Convention right is engaged; second, whether the interference can be justified in accordance with a test of proportionality; and third, whether the dismissal fell within the range of reasonable responses.  Although the third stage cannot be eliminated, because s3 HRA 1998 only permits an interpretation of the law, not a wholesale revision of it, it seems unlikely that a dismissal that is found to have been a disproportionate and unjustifiable interference with a Convention right would be found to have been within the range of reasonable responses.  The Higgs Poser is, in short, whether in claims for unfair dismissal that engage those Convention rights where justification is possible, the courts and tribunals must, in order to comply with s3 HRA 1998, assess the full test of proportionality before moving on to the looser and pro-employer range of reasonable responses test.  Like its Boson namesake, let’s hope that this hypothesis about Higgs turns out to be correct, though preferably without a delay of 40 years.

(Suggested citation: H Collins, ‘Discrimination law, Section 3 Human Rights Act, and the Higgs Poser’, UK Labour Law Blog, 31 October 2025, available at https://uklabourlawblog.com/)