Was it discriminatory to dismiss a school employee who had expressed her Christian beliefs, relating to same sex marriage and biological gender, on social media?
Yes, said the Court of Appeal in its recent decision in Higgs v Farmor’s School.
Background
Farmor’s School (the Respondent) is a secondary school in Gloucestershire. Kristie Higgs (the Claimant) is a Christian and had been employed by the school for six years, most recently as a pastoral administrator and work experience manager.
A parent emailed the head teacher in late October 2018 complaining that Ms Higgs had expressed “homophobic and prejudiced views against the LGBT community” on her Facebook page, and they were “…concerned that this individual may exert influence over vulnerable pupils” and found “these views offensive.” An investigation was conducted, Ms Higgs was suspended and following disciplinary proceedings she was summarily dismissed for gross misconduct on 7 January 2019. Her internal appeal was not successful.
Ms Higgs brought an Employment Tribunal (ET) claim against the Farmor’s School for direct discrimination and harassment on the grounds of religion or belief. This was primarily on the basis of both a lack of belief someone can change their biological sex, and a belief that marriage is an institution between a man and a woman.
The posts (which were not written by Ms Higgs but were instead copied and pasted from another source) expressed concerns about: the brainwashing of children, teaching children that all relationships are equally valid and that same sex marriage is exactly the same as traditional marriage, promoting the idea that gender is a matter of choice rather than biology, fearing that expressing and teaching Christian beliefs relating to the creation of men and women and marriage would in practice become forbidden, with freedom of belief at risk of being destroyed.
Ms Higg’s ET claims were dismissed, and she appealed to the Employment Appeal Tribunal (EAT), arguing that the ET had failed to properly consider whether her posts constituted a manifestation of her beliefs and whether the Respondent’s actions (her dismissal) were a proportionate interference with her rights to freedom of expression and belief.
The EAT found the ET’s reasons for dismissing the claim were legally flawed, with inadequate examination of whether there was a sufficiently close relationship between the posts and Ms Higg’s beliefs. Her appeal was allowed only to the extent that the case would be remitted back to the ET for re-determination on the correct legal basis. Ms Higgs then appealed that decision to the Court of Appeal (CA), arguing the EAT should have ruled that her claim succeeded, and that she had therefore been unlawfully discriminated against because of her beliefs and manifesting, rather than merely remitting the case back to the ET.
Permission to intervene in the proceedings was also granted to several parties, namely: The Archbishops’ Council of the Church of England, The Free Speech Union Ltd, The Association of Christian Teachers, Sex Matters and The Equality and Human Rights Commission.
Applicable Law
The Equality Act 2010 (EqA) provides:
Direct discrimination - Section 13
“A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”
Harassment – section 26(1)
“A person (A) harasses another (B) if—
(a) A engages in unwanted conduct related to a relevant protected characteristic, and
(b) the conduct has the purpose or effect of—
(i) violating B's dignity, or
(ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
The CA also considered Articles 9 and 10 (Freedom of thought, conscience and religion and the Freedom of expression) of the European Convention on Human Rights and the provisions of the Human Rights Act 1998.
Decision
The CA found that the dismissal was not objectively justified and therefore constituted unlawful discrimination on the grounds of religion or belief. Despite the Respondent’s position that the language in the posts was offensive to gay and trans people, the CA did not accept dismissal to be a proportionate response.
It set out a useful summary of its reasoning, which included that where a dismissal is merely because an employee has expressed a religious or other protected belief to which the employer objects, this will constitute unlawful direct discrimination. However, if the dismissal is motivated not simply by the expression of the belief itself, but something objectionable in the way it was expressed (determined objectively) then the dismissal may be lawful, but only if the employer can demonstrate it was a proportionate response to the objectionable feature – in short that it was objectively justified.
The Respondent in this case had sought to justify Ms Higg’s dismissal on the basis that the Facebook posts were intemperately expressed and were liable to damage the school’s reputation within the community. Whilst the CA agreed it was unwise of her to re-post the material (which the ET described as containing “florid and provocative language”), Ms Higgs was a long-serving employee with no complaints about her work. The CA concluded that neither the language of the posts nor the risk of reputational damage was sufficient to justify her dismissal, particularly given that she had not said anything of the kind at work nor displayed discriminatory attitudes in her treatment of pupils.
Comment
Katherine Irvine, Associate in our Employment team, comments:
“This case gives authoritative guidance on how the law protects expression of religious and philosophical beliefs in the workplace. It is not however a decision which provides employees the right to say whatever they like on social media and avoid consequences, such as dismissal, by relying on their right to express their religious or philosophical beliefs.
“Whilst employers still have responsibilities to prevent unlawful discrimination and harassment during disciplinary processes which involve the expression of an employee’s beliefs, that does not mean a prohibition of appropriate sanction following, for example, offensive social media posts. Holding and expressing views on controversial matters, even views which may shock others, can be accepted by a tribunal as a protected belief under EqA. What is key is an examination of the manner in which that expression of belief is executed. If the manner of the expression is objectionable then dismissal (or other sanction) by the employer can still be lawful provided it is proportionate and capable of being objectively justified.
“Proportionality and objective justification always require a case-by-case examination of the facts. Among the factors the tribunal will consider will be whether that expression actually did, or is realistically likely to, damage the employer’s reputation, whether the language used affects the employee’s ability to do their job, and whether there is clear distinction between the employee’s personal social media account and their employer, which is relevant to assessing the extent and gravity of any alleged reputational damage.”
Published 12 March 2025
