UK: Higgs v Farmor’s School

published on 12 March 2025 | reading time approx. 3 minutes

On the 12 February 2025, the Court of Appeal delivered a landmark ruling regarding employee rights and employer responsibilities concerning the expression of controversial views in the workplace.

The facts »
The legal position »
The decision »
In conclusion »

The facts

Kristie Higgs was dismissed from her role as a pastoral administrator and work experience manager at Farmor's School in Gloucestershire for gross misconduct after posting comments on Facebook objecting to the teaching of same sex marriage and gender-fluidity in schools which were considered homophobic and transphobic. The posts were mainly cut-and-paste from other (American) sources and included language such as, “brainwashing”, “the LGBT crowd” and “child abuse”.

An anonymous compliant was made to the Headteacher by a parent who had seen the posts and, following an investigation, Mrs Higgs was then dismissed for gross misconduct. The School found that her posts contained “inflammatory and quite extreme” language and posed a risk of harm to the school’s reputation.

Mrs Higgs argued that her dismissal was unlawful direct discrimination and harassment due to her Christian beliefs, specifically, her views on gender fluidity and biological sex, which are protected under the Equality Act 2010.

The Employment Tribunal (ET) initially rejected her claims of discrimination and harassment, stating that her dismissal was based on the potential reputational damage that her posts could cause the school, rather than her actual beliefs.

She appealed to the Employment Appeal Tribunal (EAT) which allowed her appeal and remitted the case to another Tribunal for reconsideration. Ms Higgs appealed further to the Court of Appeal on the ground that the EAT was wrong to remit. She argued that it was bound to hold that the treatment she had complained of was not an objectively justifiable response to the Facebook posts under Articles 9(2) and 10(2) of the European Convention on Human Rights (“ECHR”) - the freedom of thought, belief and religion and the freedom of expression.

The legal position

It was accepted that Ms Higgs’ beliefs were protected beliefs under the EqA. It was also accepted that Ms Higgs had the right to publicly express those beliefs pursuant to Articles 9(1) and 10(1) ECHR. The School was only objecting to the manner of her expression.

The relevant question to determine if Ms Higgs’ dismissal was directly discriminatory under s13(1) EqA was, whether the employer had an objective justification for its response to her expressing her beliefs via the Facebook posts. A dismissal in response to an employee’s manifestation of their belief was not to be treated as having occurred “because of” that manifestation if the dismissal was an objectively justifiable response to the inappropriate way in which the belief was manifested

The decision

The School sought to justify Ms Higgs’ dismissal on the basis that the posts in question were offensively expressed and included insulting references to gender fluidity and “the LGBT crowd” which were liable to damage its reputation in the community. The posts had been reported by one parent and might be seen by others.

The Court of Appeal rejected that argument. It found that the EAT was wrong to order remittal on the claim. It held that Ms Higgs’ dismissal was not objectively justified and, therefore, it constituted unlawful direct discrimination on the ground of religion or belief. The dismissal was disproportionate for the following reasons:

The language of the posts was not grossly offensive. It was not primarily intended to incite hatred or disgust for homosexuals or trans people. It was a “series of derogatory sneers” and “stupidly rhetorical exaggeration”.
The majority of the language was not Ms Higgs’ own words; it was the language of others. She made clear that she did not agree with the language. This was relevant to the degree of culpability.
There was no evidence that Ms Higgs' posts had directly harmed the school's operations or its students. The concern was limited to potential future damage. There was no possibility that readers of the posts would believe that they represented the School’s own views. The posts were made on her personal Facebook account, in her maiden name, to a limited audience, and with no reference to the School.
The court noted that Higgs was otherwise fit to work at the school. There was no evidence that she had expressed her views in the workplace nor treated gay or trans pupils differently. She was a long-standing employee who had no complaints made about her work.

In conclusion

Employers must carefully balance employees' rights to express their religious and philosophical beliefs with the need to maintain a respectful and inclusive workplace. Any disciplinary actions taken against employees for expressing their beliefs must be necessary and proportionate. Employers should assess whether the response is justified and proportionate to the potential impact of the employee's expression and clear policies on social media use and the expression of personal beliefs are highly recommended. These policies should outline acceptable behaviour and the potential consequences of violating these guidelines.

The context in which the views are expressed is crucial. Employers should evaluate whether the expression of views could reasonably be seen as representing the organisation or causing reputational damage. Providing training and raising awareness about diversity, inclusion, and the respectful expression of beliefs can help prevent conflicts and misunderstandings. However, each situation should be assessed individually, considering the specific circumstances and the potential impact on the workplace.

Finally, this judgment clarifies the importance of protecting the right to manifest religious beliefs in the workplace while also recognising the need for a nuanced approach to allegations of discrimination. It illustrates that perceptions of beliefs, particularly when based on stereotypes, cannot justify discriminatory actions.