Higgs v Farmors School
Higgs v Farmor’s School [2025] EWCA Civ 109
Facts
Kristie Higgs, the Claimant, was employed by Farmor's School as a pastoral administrator and work experience manager. She is a Christian. In October 2018, a parent complained to the school that Higgs had expressed "homophobic and prejudiced views" on her Facebook page. Higgs' Facebook posts expressed beliefs that gender is binary, not "fluid," and that same-sex marriage cannot be equated with traditional marriage. She also expressed concern that children, particularly in primary schools, were being taught otherwise. The posts included re-posts that used strong language such as "brainwashing" and "vicious form of totalitarianism". Following an investigation, Higgs was summarily dismissed for gross misconduct in January 2019. The school believed her posts could be viewed as evidence that she held "homophobic" or "transphobic" views, which could negatively impact the school's reputation. Higgs initially brought claims to the Employment Tribunal (ET) for direct discrimination and harassment based on her religion or belief.
The ET dismissed her claims, stating that her dismissal was not because of her protected beliefs, but because of the school's concern that her posts could be perceived as "homophobic and transphobic". Higgs appealed to the Employment Appeal Tribunal (EAT). The EAT allowed her appeal, finding that the ET had not properly considered whether Higgs' Facebook posts were a manifestation of her beliefs and had not properly undertaken a proportionality assessment of the school’s actions. The EAT remitted the case back to the ET. Higgs appealed to the Court of Appeal, arguing that the EAT should have ruled in her favour rather than remitting the case. The school cross-appealed, challenging the EAT's test for determining the case, but was denied permission.
Court of Appeal Decision
The Court of Appeal allowed Higgs' appeal in part and made a finding that the school had unlawfully discriminated against Higgs, which overturned the EAT decision to remit. The Court of Appeal held that the school’s actions constituted unlawful direct discrimination .The Court stated that an employee cannot be dismissed simply for expressing a religious or other protected belief, even if the employer or a third party objects. However, if the dismissal is motivated by something objectionable in the way a belief was expressed, then the dismissal is lawful if the employer shows it was a proportionate response to that objectionable feature.
The Court found that although the language used in Higgs' posts was "florid and provocative," it did not meet the threshold for being so offensive as to justify her dismissal, and that dismissal was a disproportionate response. The Court found there was no evidence that Higgs' views would affect her work, nor any complaints about her work. The Court stated that while employers may have legitimate concerns about reputational damage they cannot justify discrimination by arguing they had to protect themselves from adverse reactions from third parties. The Court also acknowledged that the posts were on a personal account, and did not identify the school, which reduced the likelihood of reputational damage to the school. The Court noted that "lack of insight" on the part of an employee cannot be an overriding factor when considering if a dismissal is fair. The Court acknowledged that the school was entitled to investigate the complaint but found it was not necessary to determine whether the investigation or suspension were also justified and encouraged a "pragmatic" approach from the parties to resolve these issues. The Court of Appeal concluded that the EAT was wrong to remit the case on the dismissal claim, because on the available facts, the dismissal was unjustified .
Comment
This case highlights the tension between an employee's right to freedom of expression and an employer's interest in protecting its reputation and maintaining a harmonious workplace. The Court of Appeal emphasized that the right to manifest religious beliefs is a fundamental right and cannot be limited simply because some find the beliefs offensive. However, this right is not absolute; it can be limited where necessary to protect the rights of others.
The Court’s decision makes clear that an employer needs to show an objectively justifiable reason for limiting an employee’s right to freedom of expression. This involves a proportionality assessment, balancing the employee's rights against the employer's objectives. The Court emphasized that a distinction must be made between the holding of a belief and the way that belief is expressed. The manner of expression is important: offensive language or the targeting of specific groups can be considered objectionable.
The Court provided a useful summary of the principles underpinning the approach to balancing freedom of belief and expression in the context of employment: the foundational nature of the rights, the qualified nature of the rights, the contextual nature of any objective justification, and the need for a proportionality assessment. The case clarifies that the test of “objective justification” includes the test that the action was prescribed by law; and that the employer's rights under the employment contract provide the necessary framework of "law". The Court made clear that the test is what the words used actually mean, not what a third party might think or infer .
The Court acknowledged that social media posts have the potential to damage an employer's reputation, especially within a local community; however, an employer must not make stereotypical assumptions about an employee or their views. This ruling provides important guidance for employers when considering how to deal with employees who express controversial views, balancing the protection of free speech with legitimate business concerns.
