Court of Appeal: Dismissal of employee over controversial Facebook posts was discriminatory

What you need to know

• The Court of Appeal has found for the claimant in the latest of a number of cases on protected beliefs to make headlines in recent years. The Court held that the claimant's dismissal following complaints about her Facebook posts which expressed views about same-sex marriage and gender identity was discriminatory on the ground of religion or belief. 
• Whilst it is possible for a dismissal to be lawful if this is a proportionate response to something objectionable in the way in which a belief is expressed by an employee, this remains a reasonably high bar for employers.

What you need to do

• Whilst it can be tempting for employers to want to take a hard line where employees are accused of making offensive comments, particularly where these could have implications for the reputation of the business, there are dangers in embarking on disciplinary action where such comments stem from beliefs that are rooted in religion or faith. 
• There may be circumstances where an employer is entitled to impose limitations on the employee's rights to manifest their beliefs, but this will be fact specific and any interference in that right must always be proportionate. 
• Employers should therefore exercise caution when faced with employees who have expressed a religious or philosophical belief before jumping to disciplinary action.  

Higgs v Farmor's School [2025] EWCA Civ 109 - Background

Higgs v Farmor's School involved a claim by a former employee of Farmor's secondary school, Mrs Higgs. Mrs Higgs was dismissed for gross misconduct after complaints were received by the school relating to Facebook posts she had made relating to relationships education in primary schools, including comments about same sex marriage and gender identity. Whilst no concerns had been raised relating to her conduct in her roles at the school, the school found that she had breached the code of conduct by using inflammatory language in her Facebook posts which had caused offence and in the school's view was evidence of discrimination in the form of harassment, risking harm to the school's reputation.

Mrs Higgs brought claims of discrimination, arguing that the school's actions amounted to direct discrimination because of, or harassment relating to, her protected religious beliefs. 

Employment Tribunal and Employment Appeal Tribunal decisions

The Employment Tribunal (ET) dismissed Mrs Higgs' claims of direct religious discrimination and unlawful harassment. It found that the measures the school had taken were born from concerns that someone reading the Facebook posts could reasonably consider that she held homophobic and transphobic views. The reason for its actions was, therefore, not because of or related to her protected belief but because the school was concerned that the way in which she expressed those beliefs would be perceived as showing that she had homophobic and transphobic views, the expression of which would be unprotected and unacceptable.

Mrs Higgs appealed against the ET's decision, arguing that it applied the wrong legal test.

The Employment Appeal Tribunal (EAT) allowed Mrs Higgs' appeal. It found that had the ET applied the correct legal test, it would have concluded that there was a close or direct nexus between the Facebook posts and Mrs Higgs' protected beliefs. The protection afforded in respect of religion and belief applies not only to the holding of a particular faith or belief, but also to its manifestation. 

A proportionality assessment was required to determine whether the actions taken by the school were prescribed by law and necessary for the protection of the rights and freedoms of others, recognising the essential nature of Mrs Higgs' right to freedom of belief and freedom of expression. This assessment was necessary to determine whether the school's actions were because of, or related to, the manifestation of Mrs Higgs' belief, or were in fact due to a justified objection to the manner of that manifestation. The ET had failed to engage with the nature of Mrs Higgs' rights, which included the right to hold and to express views on controversial matters of public interest, even where those views may offend, shock or disturb. 

The EAT laid down five principles to underpin the approach to be adopted when assessing the proportionality of any interference with rights to freedom of religion and belief and of freedom of expression:

1. The freedom to manifest belief (religious or otherwise) and to express views relating to that belief are essential rights in any democracy, whether or not the belief in question is popular or mainstream and even if its expression may offend.
2. However, those rights are qualified where limitation of such manifestation is necessary to protect the rights and freedoms of others. Where such limitation is objectively justified given the manner of the manifestation, that is not action taken because of, or related to, the exercise of the rights, but is by reason of the objectionable manner of the manifestation. 
3. Whether a limitation is objectively justified will always be context specific.
4. It will always be necessary to ask (i) whether the objective sought by the employer is sufficiently important to justify the limitation of the right, (ii) whether the limitation is rationally connected to that objective, (iii) whether a less intrusive limitation might be imposed, and (iv) whether the severity of the limitation on the rights of the worker outweighs the important of the objective.
5. Regard should be had to the content, tone and extent of the manifestation, the worker's understanding of the likely audience, the extent and nature of the intrusion on the rights of others and any consequential impact on the employer's ability to run its business, whether the worker has made clear the views are personal, whether there is a potential power imbalance given the employee's role, the nature of the employer's business and whether the limitation imposed is the least intrusive measure open to the employer.

The EAT determined that the matter should be remitted to the ET.  

Court of Appeal decision

Mrs Higgs appealed to the Court of Appeal, who found that her dismissal was not objectively justified and therefore constituted unlawful discrimination.

The Court of Appeal endorsed the five underlying principles articulated by the EAT, although cautioned that there is no one size fits all approach and the relevant principles require nuanced decision making.

The Court felt that dismissal was "unquestionably" a disproportionate response, notwithstanding that the school objected to the Facebook posts on the grounds that their language was offensive to gay and/or trans people.

Its reasoning was as follows:

• The language used in the posts was not considered to be grossly offensive. It was not primarily intended to incite hatred or disgust for homosexual or trans people. Further, it was not Mrs Higgs' own language – rather, she had reposted messages from others and had made clear to the school that she did not agree with the language used.  
• There was no evidence that the school's reputation had in fact been damaged, nor was there any possibility that readers would believe the posts represented the school's views. The disciplinary panel did not believe that Mrs Higgs would let her views influence her work at the school.
• The school was entitled to carry out an investigation in response to the complaint received about the Facebook posts, noting the offensive language used. However, it was debatable whether that investigation should have been disciplinary in character and whether Mrs Higgs should have been suspended.   

The Court of Appeal went on to summarise its conclusions on the discrimination finding as follows:

• Dismissing an employee merely for expressing a religious or otherwise protected belief to which the employer or a third party objects, will constitute unlawful direct discrimination. 
• However, where the dismissal is motivated not only by the expression of the belief itself, but by something objectionable in the way in which it was expressed (determined objectively) then the dismissal will be lawful only if the employer shows that it was a proportionate response to the objectionable feature.
• There was no dispute, following previous case law in this area, that Mrs Higgs' beliefs that gender is binary and that same-sex marriage cannot be equated with marriage between a man and a woman are protected under the Equality Act 2010.
• Neither the language of the posts nor the risk of reputational damage were capable of justifying Mrs Higgs' dismissal in circumstances where she had not said anything of the kind at work or displayed any discriminatory attitudes in her treatment of students.

Authors: Emily Bodger, Associate