In the case of Higgs (the Claimant) v Farmor's School (the School), the Claimant, employed by the School as pastoral administrator and work experience manager, was dismissed after a parent complained about her personal Facebook posts. These posts expressed the Claimant's beliefs that:
Her posts, largely shared from other sources, were rooted in her Christian beliefs. While the Employment Tribunal accepted that her beliefs were protected under the Equality Act 2010, it dismissed her claim of discrimination.
The Employment Appeal Tribunal later found flaws in that decision and ordered a re-hearing. The Claimant appealed to the Court of Appeal, arguing that her dismissal was unlawful discrimination and should not require further tribunal hearing.
The Court of Appeal ruled that the Claimant's dismissal was unlawful discrimination on the grounds of religion or belief. The Court confirmed that dismissing an employee purely because of their belief, or because the employer fears reputational damage from third-party objections, constitutes direct discrimination. However, an employer may lawfully dismiss if the way in which the belief is expressed is sufficiently objectionable and if dismissal is a proportionate response.
On the facts of this case the Court found the Claimant's dismissal was disproportionate and therefore unlawful.
The School's investigation into the Claimant's conduct found no evidence that the Claimant had expressed her views about gender fluidity or same-sex marriage to pupils or staff in the School, nor that she had treated gay, lesbian, or transgender pupils or staff differently.
The Court found the wording used in the social media posts were, on balance, "derogatory sneers" and "stupidly rhetorical exaggeration… not likely to be taken literally" rather than grossly offensive. The Court acknowledged that while the language used was provocative and insulting, it did not express hatred or contempt for the LGBTQ+ community. The Claimant made clear that, where sharing content created by others, she endorsed the content of the messages but did not agree with the inflammatory language used.
The School had justified dismissal based on concerns that these posts could damage its reputation, citing the potential for wider circulation. However, the Court concluded that any reputational risk was speculative. The posts were made on the Claimant's personal Facebook account, in her maiden name, with no direct reference to the School. Only one person had recognised her weeks after the posts were made. Furthermore, the Court found no evidence that the posts had harmed the School's reputation.
Even if the posts' language could be considered objectionable, the Court found that dismissal was not proportionate. The Claimant had worked for the School for six years without complaint, and there was no evidence that her views had impacted her work with pupils. The Court noted that the risk of the posts affecting the Claimant’s conduct at work was remote, particularly since she had repeatedly stated that her concerns were specific to sex education content in primary schools and would not affect her professional conduct. The Court of Appeal emphasised that the School could have issued a statement reassuring the community about her professional integrity, which may have resolved the issue without resorting to dismissal.
The Court found that although the Claimant’s conduct in reposting the material was unwise, it did not justify the extreme sanction of dismissal, particularly given her long service and clean disciplinary record at the School.
This decision highlights the risks of dismissing employees for expressing personal beliefs outside of work. Employers should avoid knee-jerk reactions to complaints about personal beliefs and carefully consider the wider circumstances of each particular case.
Employers should review contracts, policies, and social media guidelines to set clear expectations and ensure any disciplinary action is based on policy or contract breaches, not simply the expression of a protected belief. While policies should not be overly rigid, they must be clear and enforceable, allowing proportionate responses to legitimate workplace concerns.