An employee’s right to express religious beliefs on social media: Kristie Higgs v Farmor’s School and Ors

Introduction

On 12^th February 2025, the Court of Appeal handed down judgment in Kristie Higgs v Farmor’s School and Ors [2025] EWCA Civ 109 which concerned an employee’s right to express potentially controversial beliefs on a private social media account. The case explored the extent to which ‘reputational risk’ to an employer can justify disciplinary action and highlighted the importance of proportionality in carrying out a response.

 

The Facts

Ms. Higgs (the Claimant and Appellant) was employed as a pastoral administrator and work experience manager by the Respondent, Farmor’s School in Gloucestershire (‘the School’). At the relevant time, she had been so employed for a period of six years. She was a Christian.

On or around 26^th October 2018, a parent at the School contacted the headteacher, complaining that Ms. Higgs had expressed “homophobic and prejudiced views” on her private Facebook page. The posts complained of were primarily re-posts, though some additional text was added by Ms. Higgs, criticising the way in which sex education and associated topics were being taught to children, particularly in primary schools. The two core beliefs expressed in these posts were: (1) that gender belief is binary, as opposed to “fluid”, and (2) that same-sex marriage is not equivalent to marriage between a man and a woman. Ms. Higgs was critical that school children were being taught views contrary to these.

A number of further factors are of note. First, the posts were hyperbolic in nature, especially those that were re-posted. Second, the posts were made on Ms. Higgs’ private Facebook account which was in her maiden name (rather than her married name which she used in relation to her work at the School). The account also contained nothing which suggested any connection with the School, though, of course, she had been identified by the initial complainant, so it was conceivable that she may be so identifiable to others.

Following an initial interview, Ms. Higgs was suspended and a number of disciplinary charges brought against her. At a disciplinary hearing held on 19^th December 2018, those charges were considered, and by way of letter dated 7^th January 2019, Ms. Higgs was summarily dismissed for gross misconduct.

It is of note that no evidence was adduced that Ms. Higgs had ever expressed her views about gender fluidity or same-sex marriage during the course of her work at the School, nor that she had ever treated LGBTQ+ staff or pupils differently than any other individual. Whilst there was no evidence that the School’s reputation had, in fact, been harmed by Ms. Higgs’ conduct, the panel concluded that there was potential for such harm, and this was relevant to the disciplinary action taken. The panel further expressed concern that Ms. Higgs had shown no insight into the impact of her actions upon others, the School’s reputation, and the wider community; upon reflection, she said she would not have acted differently. The decision was therefore made to summarily dismiss Ms. Higgs.

Ms. Higgs raised an internal appeal following her dismissal which was unsuccessful. She therefore brought proceedings in the Employment Tribunal (‘the ET’) in April 2020 for direct discrimination and harassment pursuant to sections 13 and 26 of the Equality Act 2010, respectively.

 

The Decisions of the ET and EAT

The ET dismissed Ms. Higgs’ claim. It was found that the items she had posted on Facebook, “might reasonably lead people who read her posts to conclude that she was homophobic and transphobic”, which the School believed “had the potential for a negative impact in relation to… pupils, parents, staff and the wider community” [61]. The School’s concerns about reputational damage, therefore, were core to the ET’s findings.

 

Ms. Higgs appealed to the EAT. The EAT found that the ET had failed to consider whether there was a “sufficiently close or direct nexus” between the protected beliefs held by Ms. Higgs, and the items that she posted on Facebook, which she held to be a manifestation of those beliefs [81]. Only upon answering that question, would it be possible for the ET to adequately assess whether the School’s actions “were prescribed by law, and were necessary for the protection of the rights and freedoms of others” [83], and therefore whether they constituted discrimination or harassment. Ultimately, it found that the ET had failed to carry out the requisite test of objective justification corresponding to that in article 9 (and article 10) of the Convention, in ascertaining whether dismissal was a proportionate response. The appeal was therefore granted.

 

The case was initially remitted to the ET but Ms. Higgs appealed to the Court of Appeal and sought that it give judgment in her favour without further hearing.

 

The Court of Appeal Judgment

The Court of Appeal upheld Ms. Higgs’ appeal and gave judgment that she had, in fact, been directly discriminated against [157]. It was not in dispute, following Forestater v GCD Europe UKEAT/0105/20/JOJ, that Ms. Higgs’ beliefs that gender is binary, and that same-sex marriage is not equivalent to a heterosexual marriage, are protected beliefs.

The Court made clear, that where an individual is dismissed, solely for expressing a religious or protected belief, such as those held by Ms. Higgs, because their employer fears it will suffer reputational damage as a result, this will constitute unlawful direct discrimination pursuant to the Equality Act 2010 [175].

However, if an employee is dismissed, not because they merely express such a belief, but rather because the way in which they express it (to be determined objectively) is somehow objectionable, the effect of the decision in Page v NHS Trust Development Authority [2021] EWCA Civ 255, is that the dismissal may be lawful. However, it will only be so if the employer is able to show that dismissal was a proportionate response to the objectionable feature; the burden of proof lies with the employer [77].

 

In relation to the instant case, the Court of Appeal found that the School had been entitled to take objection to the language used by Ms. Higgs in that it was “gratuitously offensive to gay and/or trans people” on account of having referred to the behaviour of “the LGBT crowd”  and the views expressed being concerned with sex education in schools which was clearly relevant to Ms. Higgs’ field of work. However, notwithstanding those findings, the Court concluded that “the dismissal was unquestionably a disproportionate response” [158]. There were several relevant factors to that assessment; whilst the language may have been objectionable it was not “grossly offensive” [159], its primary aim did not appear to be to incite hatred or disgust towards the LGBTQ+ community, the majority of the language used was not in Ms. Higgs’ own words [160], and there was no evidence that the reputation of the School had, in fact, been damaged [161].

Finally, even if an individual reading the relevant posts may have held concerns that Ms. Higgs may allow her views to influence her work, neither the panel nor the ET believed that she would do so, and indeed, she had received no complaints, either related or otherwise, within her six years of service [162]. For all of those reasons, Ms. Higgs’ dismissal was deemed disproportionate, and she was therefore directly discriminated against by reason of the same. In summary, “neither the language of the posts nor the risk of reputational damage were capable of justifying the Claimant’s dismissal in circumstances where she had not said anything of the kind at work or displayed any discriminatory attitudes in the treatment of pupils” [175].

 

Comment

This is an interesting case which provides insightful guidance as to what is to be expected of both employees and employers in navigating social media use and the expression of personal views and opinions. It is clear, that where an individual merely expresses protected beliefs, dismissing that individual solely on account of having done so, will be inherently discriminatory, irrespective of whether the belief itself is controversial.

It is further clear that ‘reputational risk’ will not be considered a decisive factor in determining appropriate outcomes for individuals who express potentially controversial views on their private social media accounts, particularly where no actual reputational damage has been proven.

However, where protected beliefs are expressed in an objectionable manner, this may be cause for disciplinary action including dismissal. It is therefore prudent for employees to be mindful about the way in which they express their beliefs online, and the language they use. For a concerned employer, it is clear that proportionality of response will be a crucial consideration; any disciplinary action taken must be capable of objective justification.

The Court’s apparent distinction between “offensive” and “grossly offensive” may be illuminating here, though there will, of course, be a range of opinion as to where the line is drawn. Particularly where language doesn’t specifically incite hatred, it may be more difficult for employers to demonstrate that the threshold, for such conduct being sufficiently objectionable, has been reached.

This will inherently be a highly fact and context specific exercise. In the index case, for example, it is quite possible to see how on a slightly different factual matrix, the Court may have reached the opposite conclusion. For instance, if Ms. Higgs had posted on a platform associated with the School, or reputational damage had been proven, or the School had adopted a less draconian measure than dismissal, discrimination may not have been made out.

As social media continues to serve as a major vehicle for communication and connection in our society, there is no doubt that individuals will continue to express their protected beliefs on such forums. Such expressions are bound, from time to time, to create discord in employment relationships. It will be interesting to see how the courts navigate such disputes into the future.

 

Analysis and review produced by Alicia Harrison who is a Probationary Tenant at Farrar’s Building. Alicia accepts instructions in all of Chambers’ practice areas.  For further information, please contact her Clerking Team.

 

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