Higgs v Farmor’s School [2025] EWCA Civ 109
On 12 February 2025, the Court of Appeal handed down an important decision on gender- critical views - the latest in a series of cases on workplace rights and beliefs in which employers must strike a delicate balance when managing employees’ differing opinions. The case also involved the expression of controversial views on social media outside work and indicated that employers will struggle to shut these down and justify the dismissal of an employee on the basis of an argument of reputational damage only.
Mrs Higgs was a Christian and employed as a counsellor at Farmor's School. She was dismissed following a number of Facebook posts and reposts in which she was explicitly critical of the way gender and relationships were being taught in schools. For example, one post stated that “the LBGT crowd with the assistance of the progressive school systems are destroying the minds of normal children by promoting mental illness".
A parent at the school complained that they found Mrs Higgs' views to be "homophobic and prejudiced". The school investigated, suspended and dismissed Mrs Higgs. She brought claims at the Employment Tribunal (ET) arguing that her dismissal constituted direct discrimination and harassment based on her religious beliefs (that is, amongst other opinions she held, that same-sex marriage is not the same as marriage between a man and a woman and that someone could not change their biological sex or gender).
The ET rejected her claims of discrimination, concluding that there was not a strong enough “nexus” between her posts and her religious beliefs to constitute such discriminatory behaviour on the part of the school in respect of her dismissal and that in fact the reason the school had dismissed her was because of their fear that their reputation could be damaged by her homophobic and transphobic posts. These could impact pupils, parents, staff and the wider community. They also decided that because Ms Higgs’ posts were public, she had had no expectation of privacy.
Mrs Higgs appealed this decision to the Employment Appeal Tribunal (EAT), arguing that the tribunal had failed to properly consider whether her Facebook posts were a manifestation of her protected beliefs and therefore whether the school's actions were justified. The EAT allowed the appeal, referring the case back to the ET for reconsideration.
They found that the original tribunal had not adequately addressed this question or the balance that has to be struck in the application of the proportionality/legitimate aim argument. That is, whether the school's actions had been necessary for the protection of the rights and freedoms of others under human rights law. Mrs Higgs appealed to the Court of Appeal on the grounds that judgment should have been given in her favour by the EAT, without another ET hearing.
The Court of Appeal allowed Mrs Higgs' appeal and substituted judgment in her favour. Following Forstater v GCD Europe, the Court confirmed that gender-critical beliefs, such as those held by Mrs Higgs, and the manifestation of those beliefs, are indeed protected by the Equality Act 2010. However, if the expression of those beliefs is objectionable, determined objectively, then a dismissal would be lawful if the employer could show that it was a proportionate response.
The school had argued that the dismissal was indeed proportionate on the basis that the posts were insulting to the LGBQX community and liable to damage the school’s reputation. The Court of Appeal disagreed stating that Mrs Higgs' beliefs had not impacted her behaviour at work towards pupils, nor had she expressed them there and dismissal was therefore not a proportionate sanction. While the Court conceded that she had been unwise to re-post such provocative language, this could not justify her dismissal especially as she was a long serving employee whose work at the school had never been criticised.
Implications
This case raises key issues about social media conduct even outside the workplace and in an employee’s own time. In the past, employers have cited 'reputational risk' as a key factor in determining outcomes for employees who express views on social media that may be considered unacceptable. The bar for what is objectionable now seems to be a high one after Higgs - the court asserting that the posts may have been offensive but were not “grossly” so.
It is also relevant that the majority of Mrs Higgs posts were re-posts (sometimes quoting from government policy on education) and that there was no evidence of actual reputational damage to the school. If the school had not dismissed Ms Higgs but disciplined her, then her claims may not have been successful. Yet there is, undoubtedly, a hard line for employers to walk given that they are under a duty to prevent discrimination including harassment in the workplace.
That said, the judgment should not suggest that it gives employees the green light to make offensive comments on social media by relying on their religious or philosophical beliefs. Instead an employer needs to remember that the right to freedom of religion and belief is a fundamental one and dismissing an employee or worker for this, may well be discriminatory unless the belief is expressed so objectionably that dismissal is the only possible response.
The dismissal of an employee merely because they have expressed a religious or other protected belief to which the employer or a third party objects on the basis of protecting reputation will constitute unlawful direct discrimination.
The following conclusions from Lord Justice Underhill have been reproduced from the judgment:
(1) The dismissal of an employee merely because they have expressed a religious or other protected belief to which the employer, or a third party with whom it wishes to protect its reputation, objects will constitute unlawful direct discrimination within the meaning of the Equality Act.
(2) However, if the dismissal is motivated not simply by the expression of the belief itself (or third parties' reaction to it) but by something objectionable in the way in which it was expressed, determined objectively, then the effect of the decision in Page v NHS Trust Development Authority is that the dismissal will be lawful if, but only if, the employer shows that it was a proportionate response to the objectionable feature – in short, that it was objectively justified.
(3) Although point (2) modifies the usual approach under the Equality Act so as to conform with that required by the European Convention of Human Rights, that "blending" is jurisprudentially legitimate.
(4) In the present case the Claimant, who was employed in a secondary school, had posted messages, mostly quoted from other sources, objecting to Government policy on sex education in primary schools because of its promotion of "gender fluidity" and its equation of same-sex marriage with marriage between a man and a woman. It was not in dispute, following the earlier decision of the EAT in Forstater v GCD Europe, that the Claimant's beliefs that gender is binary and that same-sex marriage cannot be equated with marriage between a man and a woman are protected by the Equality Act.
(5) The school sought to justify her dismissal on the basis that the posts in question were intemperately expressed and included insulting references to the promoters of gender fluidity and "the LGBT crowd" which were liable to damage the school's reputation in the community: the posts had been reported by one parent and might be seen by others. However, 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 her treatment of pupils.