Court of Appeal rules on expression of personal beliefs in a professional setting

Posted: 19/02/2025

The recent ruling by the Court of Appeal (CA) in the case of Mrs Kristie Higgs, a pastoral administrator and work experience manager at Farmor’s School, highlights the challenges faced when expressing personal beliefs in a professional setting.  

Mrs Higgs faced dismissal following complaints about her Facebook posts. The posts were made on a personal Facebook account, in her maiden name and with no reference to the school. Some of the posts were interpreted as homophobic and/or transphobic. It is crucial to note that, while some of her posts contained arguably objectionable language, she clarified that she did not endorse the language used in reposted content.

Claiming direct discrimination and harassment, Mrs Higgs defended her beliefs in the literal interpretation of the Bible, scepticism towards ‘gender fluidity’, traditional views on marriage, and objections to certain aspects of sex education in schools. These beliefs, protected under section 10 of the Equality Act, formed the basis of her legal challenge.

At first instance, the Employment Tribunal (ET) dismissed Mrs Higgs' claims of direct discrimination and harassment on the grounds of her religious beliefs, finding that the reason for the school's actions was a concern that her posts could potentially damage the school's reputation. The ET therefore concluded that the disciplinary process, including her dismissal, was motivated by the school's concern about the potential negative impact of her posts on pupils, parents, staff, and the wider community, and not because of the views Mrs Higgs herself held. 

Mrs Higgs appealed the decision to the Employment Appeal Tribunal (EAT), arguing that the tribunal failed to properly consider whether her Facebook posts were a manifestation of her protected beliefs and whether the school's actions were justified. The EAT allowed the appeal, and, after finding that the ET did not adequately engage with the question of whether there was a close or direct nexus between Mrs Higgs' posts and her protected beliefs, they remitted the case back to the ET for reconsideration. Both parties appealed the EAT decision to the CA. 

The CA concluded that the EAT was wrong in requiring the case to be remitted back to the ET and instead held that the EAT should, in fact, have concluded that the decision to dismiss the claimant constituted unlawful discrimination on the ground of religion or belief. In finding so, the CA held that, even assuming the school could take objection to the language used in the posts (which it did not in fact decide), dismissal was unquestionably disproportionate. Even if the posts were objectionable, they were not considered to be offensive and they were not intended to incite hatred or disgust for gay or trans people. Instead, they were ‘stupidly rhetorical exaggeration’. As the tribunal had accepted that Mrs Higgs had not said anything objectionable at work or displayed any discriminatory attitudes in her treatment of pupils, her dismissal could not be justified. 

Further, there was no evidence that the reputation of the school had in fact been damaged. The school was concerned about potential damage and that was not enough. The CA accepted that there might be cases where, if the dismissal is motivated not simply by the expression of the belief itself (or third parties’ reactions to it), but by the damage caused, the dismissal could nonetheless be lawful. However, this case was not one of them.  

The court also clarified that an employer cannot justify dismissal solely based on an employee's lack of insight or refusal to move personal posts. Employers must carefully balance any attempt to limit offensive views with respecting employees' right to express their protected beliefs, even on sensitive topics like gender identity.

This case underscores the intricate balance between personal beliefs, professional conduct, and legal protections in the workplace and highlights the need for employers to navigate such situations cautiously, ensuring they do not unlawfully discriminate against employees expressing their beliefs, nor allow other employees to be harassed because of such beliefs.  

While protecting reputation is crucial, it does not override either the right to manifest protected beliefs or the need to prevent harassment of others, particularly where any reputational damage is hypothetical. It is apparent this is not going to be the last of the cases discussing what can be said both inside and outside of work. However, individuals cannot simply be dismissed because others take, or may take, offence. 

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