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Belief and discrimination – key practical takeaways from Higgs v Farmor’s School

Picture of Charlie Maples

By Charlie Maples, Mollie Gascoigne

13 Feb 2025 | 3 minute read

"An employer does not have carte blanche to interfere with an employee’s right to express their beliefs simply because third parties find those beliefs offensive and think the worse of it for employing them. Nor, however, does the employee have carte blanche about what they can say in public or how, or in what circumstances, they say it."

On Wednesday 12 February 2025, the Court of Appeal delivered its landmark judgment in the latest of a number of employment cases in recent years concerning social media posts on issues of gender and sexuality.

Kristie Higgs, a Christian school worker, has successfully appealed to the Court of Appeal following her dismissal for Facebook posts expressing views on gender and sexuality that a parent had complained about.  

The judgment still leaves uncertainty for employers who will still need to navigate tricky considerations in practice, but it does provide an up-to-date framework for employers to consider when in similar situations. Below we have outlined the background to the case and the appeals, before turning to key practical takeaways for employers.

Background to the case

Mrs Higgs, a Christian, had been employed by Farmor’s School since 2012 as a Pastoral Administrator and work experience manager.

In October 2018, a parent of a pupil at the school emailed the Head Teacher to complain about posts shared by Mrs Higgs’ to her personal Facebook page. The themes of her posts, and the views expressed therein, can generally be described as (1) the belief that gender is binary and not fluid (sometimes known as “gender-critical” belief) and (2) the belief that same-sex marriage cannot be equated with marriage between a man and a woman. One example of Mrs Higgs’ posts was one from October 2018 in which she had written that children were being ‘brainwashed’ in respect of sex education in schools related to same-sex marriage and gender identity.

Higgs was suspended by the school, and after an investigation, disciplinary charges were brought against her. Following a disciplinary hearing in December 2018, Higgs was summarily dismissed for gross misconduct in January 2019. Her internal appeal was unsuccessful.

Mrs Higgs brought claims of direct discrimination and unlawful harassment. She argued that her beliefs were protected by law (which is correct as they are religious and philosophical beliefs) and her treatment (including the suspension, disciplinary investigation, dismissal and dismissal appeal rejection) was unlawful.

The Employment Tribunal rejected her claims of direct discrimination and harassment. The Tribunal noted that Mrs Higgs’ protected beliefs could not, on their own, be equated with being homophobic or transphobic. Nevertheless, the school had concluded that the language of her posts might reasonably lead others to think that she did hold views which were homophobic or transphobic. Therefore, the Tribunal held that Mrs Higgs wasn’t dismissed due to protected beliefs, but because of the way she had expressed those beliefs and how that would be perceived by others.

Mrs Higgs successfully appealed that decision to the Employment Appeal Tribunal (EAT). The EAT held that it was not sufficient for the school to have been motivated merely by the perception that Mrs Higgs’ might hold ‘wholly unacceptable views’.  The Tribunal had failed to apply the relevant legal test properly, so Mrs Higgs’ rights had not been properly assessed, nor had the required balancing exercising been carried out. The case was sent back to the Tribunal to make its own conclusion based on the EAT’s judgment.

Despite Mrs Higgs’ success at the EAT, she appealed that decision to the Court of Appeal. This was on the basis that the case should not be sent back to the Tribunal to determine. Rather, she argued that the EAT was bound to reach its own conclusion and conclude that the interference with her rights by the school was unlawful. It was not in dispute that Higgs’ beliefs amounted to protected beliefs, following the earlier EAT decision in Forstater v GCD Europe.

In the Court of Appeal, Lord Justice Underhill, sitting with Lord Justice Bean and Lady Justice Falk, upheld Mrs Higgs’ appeal. The language of the posts, and the school’s concerns for its reputation in the community, did not justify her dismissal. Mrs Higgs’ had not expressed similar comments at work, nor had she behaved discriminatorily towards pupils.

Why is the judgment significant for employers?

The judgment gives lawyers, academics, and policymakers plenty to discuss on the technicalities of equality and human rights laws. But what does it actually mean for you, as an employer?

The headline takeaway is that dismissing an employee merely because they have a protected belief and/or because they have expressed a protected belief which others might find offensive will be unlawful.

However, if the dismissal is not because of the belief (or others' reactions to it) but something in the way it was expressed (referred to as the 'manifestation of the belief'), this may be lawful. However, this will only be the case where it can be "objectively justified". In other words, where as an employer you can show that dismissal (or another sanction) was a proportionate response to the objectionable/inappropriate way in which the manifestation of the protected belief was expressed.

In considering whether any sanction you are considering would be a justifiably proportionate response to an objectionable/inappropriate way in which an employee has manifested a protected belief, employers should consider:

  1. The content of the manifestation – what was actually said or done? In this case the CA commented "it is… necessary…to judge an employee’s statement by what they actually say (albeit including any necessary implications) rather than by what some readers might choose illegitimately to read into them. That is particularly important in the current social media climate, where messages are often read hastily and sometimes by people who are partisan or even ill-intentioned or (more likely) simply succumb to the common human tendency to find in a communication what they expect to find rather than what is actually there".

  2. The tone used – is the language gratuitously offensive? If the views are expressed publicly in an inappropriate way, this is more likely to be a legitimate reputation concern, e.g. using egregiously offensive language. However, the threshold for this assessment will be very high.

  3. The extent of the manifestation.

  4. The worker’s understanding of the likely audience for their comments.

  5. The extent and nature of the intrusion on the rights of others, and any consequential impact on your ability as an employer to run your business.

  6. Whether the worker has made clear that the views expressed are personal, or whether they might be seen as representing the views of you as the employer, and whether that might present a reputational risk. The Court of Appeal did not consider the school's reputational concerns in this case to be compelling and it is clear that employers will need to properly substantiate any actual or feared reputational concerns they have in respect of social media posts.

  7. Whether there is a potential power imbalance given the nature of the worker’s position or role and that of those whose rights are intruded upon – for example how senior is the worker concerned and might they be reasonably considered to speak on behalf of the business?

  8. The nature of your business, in particular where there is a potential impact on vulnerable service users or clients which may be relevant to factor in.

  9. Whether the limitation/sanction proposed is the least intrusive measure open to the employer – for example if your concern as employer is about reputation might you be able to deal with that aspect differently?

It is not impossible to lawfully interfere with someone's rights of expression, but employers need to remember that the starting point is that there is no right not to be offended (in the way that many individuals often assume) and the employer will need to carefully consider the whole context of the situation and avoid a knee-jerk reaction.

General checklist of considerations

In light of this latest judgment and taking a step back to assess the bigger picture in this increasingly active area of litigation, we’ve distilled a brief non-exhaustive list of factors to consider where concerns relating to particular views or posts are raised:

  • While not disputed in this case, the definition of protected belief is potentially very broad. It is important that you reflect carefully on the nature of the belief and whether it is (or may be) protected. The Grainger test determines whether a belief is protected: belief must be genuinely held, not just an opinion, must be a belief as to a weighty and substantial aspect of human life and behaviour, must attain a certain level of cogency seriousness cohesion and important and must be worthy of respect in a democratic society and not incompatible with human dignity and not conflicting with the fundamental rights of others (accepting that beliefs which are offensive, shocking or even disturbing to others can still be protected).

 

  • Any alleged comments should be assessed according to their actual wording and the tone and language used. Avoid any stereotyping or making assumptions of someone’s belief, such as drawing broader conclusions as to whether comments are (for example) homophobic or transphobic. Accept that the threshold for speech qualifying as grossly offensive is high – more akin to language which incites hatred or disgust for groups of people rather than language which could be considered to be a derogatory sneer or a stupidly rhetorical exaggeration. Consider whether the words posted are the employee’s own or they are re-posting something written by someone else.

 

  • Context is key. Consider where and how the belief has been expressed. A private social media post is less likely to justify an employment sanction compared to an unsolicited and irrelevant comment made during a workplace meeting. Of course, this will be more difficult where the boundaries between work and personal life are blurred such as in group chats; these will require further investigation.

 

  • Promote tolerance of views within the workplace (including opposing views) and communicate this clearly through employee training and your policies. You do need to create an environment where everyone understands that people will disagree about religious and philosophical matters and some people’s views may offend others.

 

  • Accept that it is uncomfortable when these conflicts occur both within and outside the workplace. You shouldn’t shy away from taking steps to properly understand and address complaints and issues, but you do need to ensure that judgements are reserved until you have established the relevant facts. The Court of Appeal in this case noted that the School were entitled to investigate in respect of Mrs Higgs’ comments upon receipt of the complaint. However, it is important to investigate fully first, and where possible, making it clear to the individual that you just need to understand the factual circumstances. You don’t even need to term this as a disciplinary investigation at the outset when you are just trying to understand what has happened and the context.

 

  • Do not rely on potential reputational damage without considering carefully how warranted that concern really is (by reference to where it was posted, who has seen it, how many complaints have been received since etc).

 

  • Consider how the views expressed relate to the employee’s actual work. Are there grounds for thinking this will lead to them behaving in a discriminatory or harassing or negative way at work? Has there been any evidence of this?

 

  • Seek legal advice if you are unsure.

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