In the latest (and possibly final) instalment of a long-running dispute, the Court of Appeal has recently delivered its landmark judgment in Higgs v Farmor’s School [2025] EWCA Civ 109 and ruled that the dismissal of a school worker for gender-critical social media posts was discriminatory. The judgment considers the extent of a worker’s right to freedom of speech and to express/manifest their protected beliefs, and the limits of an employer’s right to interfere where a worker expresses protected views in a way others complain is controversial, inflammatory or offensive.
Factual background
Ms Higgs was dismissed from her roles as pastoral administrator and work experience manager in a secondary school, following a third-party complaint about her social media posts. The school described the language used in the relevant social media posts variously as “offensive”, “inappropriate”, “inflammatory”, “extreme” and said that they were “discriminatory”, could be regarded as “harassment” and contained “language which may demean or humiliate pupils”.
Following her dismissal, Ms Higgs brought a claim for religion and belief discrimination and harassment. The employment tribunal held that Ms Higgs held protected philosophical beliefs. In summary, H’s social media posts were held to express the following protected philosophical beliefs:
- that gender is binary and not fluid (‘gender-critical’ views);
- that same-sex marriage cannot be equated with traditional marriage between a man/woman; and
- it is wrong to teach anything different to children (particularly primary school children).
However, it dismissed her discrimination claim on the basis that she had not been discriminated against or harassed because she held those protected beliefs, but rather because of the inflammatory language she had used in her social media posts.
EAT decision and proportionality guidance
As we summarise in more detail here, the EAT allowed Ms Higgs’ appeal against the finding that she had not been directly discriminated against or harassed because of her protected beliefs, holding that the employment tribunal:
- had failed to engage with the question of whether the school’s conduct was because of, or related to, the expression/manifestation of her protected beliefs;
- should have considered whether there was a sufficiently close or direct nexus between her protected beliefs and her social media posts; and
- had failed to carry out a proportionality assessment of the school’s actions against H’s rights to freedom of belief and freedom of expression.
The EAT also provided guidance on the principles to be adopted by the courts/tribunals when considering the proportionality of any interference by an employer with a worker’s rights to freedom of religion and belief and freedom of expression.
The EAT sent the case back to the tribunal for further determination, but Ms Higgs appealed to the Court of Appeal arguing that the EAT should have upheld her claims. Various bodies, including the EHRC, were granted leave to intervene in the appeal.
What did the Court of Appeal hold?
The Court of Appeal upheld Ms Higgs’ appeal and substituted a finding that her dismissal amounted to unlawful discrimination based on her protected philosophical beliefs. There was no doubt that Ms Higgs’ social media posts were “intemperately expressed” and included “insulting references”. However, neither the language of the posts, nor the risk of reputational damage to the school, were capable of justifying Ms Higgs dismissal because she had not said anything of the kind at work, or displayed any discriminatory attitudes in her treatment of pupils at the school.
When does an employer have a right to interfere with a worker expression of their beliefs?
The Court held that it would be unlawful direct discrimination for an employer to discipline or dismiss an employee merely because they have expressed a religious or protected philosophical belief in a way which the employer, or a third party with whom it wishes to protect its reputation, objects.
However, sometimes an employer’s decision to discipline or dismiss the employee is motivated not simply by the expression of the protected belief itself (or a third parties’ reaction to it), but rather by something that is objectionable about the particular way in which it the employee expressed their protected belief (assessed objectively).
Where it is possible to separate the employee’s “objectionable manifestation” of their protected belief from the mere expression of it in this way, then it will only be lawful for an employer to discipline or dismiss the employee if that sanction is objectively justified. This requires the employer to prove that the disciplinary action/dismissal was a proportionate response to the objectionable way in which the employee has expressed their protected belief.
What if an employer or others are offended by the employee’s protected beliefs?
Many employers will have experience of receiving a grievance from a staff member complaining about a colleague’s social media posts. Here, the school triggered disciplinary action against Ms Higgs following a complaint from a third-party, which it believed demonstrated that its reputation in the community could be damaged by her social media posts.
Such complaints or interventions by third parties is increasingly becoming a feature of cases involving the expression of protected religious or philosophical belief (see for example Bailey -v- Stonewall Equality Ltd & Ors [2024] EAT 119 and Miller -v- University of Bristol [2024] UKET 1400780/2022, both of which are currently under appeal).
The Court reinforced the well-established legal principle that there is no right not to be offended and that,
- freedom of speech necessarily entails the freedom to express opinions that may shock and offend”
These freedom of speech principles mean that an employer,
- …does not have carte blanche to interfere with an employee's right to express their beliefs simply because third parties find those beliefs offensive”
However, nor does this mean that an employee has,
- …carte blanche about what they can say in public or how, or in what circumstances, they say it.”
It’s a question of balance and when considering these difficult issues it is necessary to assess both:
- the specific way that the employee expressed/manifested their belief: when assessing this, the employer and tribunals/courts must “judge an employee’s statement by what they actually say (albeit including any necessary implications) rather than by what some readers might choose illegitimately to read into [their words].” The Court said that this is “particularly important in the current social media climate, where messages are often read hastily and sometimes by people who are partisan or even ill-intentioned…”; and
- whether the employer’s response is proportionate: the Court discussed the EAT’s guidelines to assessing proportionality (see our report of those guidelines here). Qualifying them by noting that: (a) whilst all of them are potentially relevant, the focus of the issues in any given case will only be on some of them; and (b) there may be some cases where other considerations, or considerations which do not neatly fit into the EAT’s guidelines, may be relevant.
Can an employer take account of an employee’s “lack of insight”?
During a disciplinary process about social media posts, one factor often considered is the degree of insight the employee has into the possible consequences of the way they have manifested or expressed their beliefs. If an employee fails to show any remorse, or shows a lack of insight into their actions, the disciplinary panel might rely on these factors to justify increasing the disciplinary sanction or dismissing. This point was demonstrated in this case, where it was said that the school’s disciplinary panel had believed that Ms Higgs had,
- no insight into the consequences of her actions, as illustrated not only in what she said to it but in her failure to take down the posts”
The Court considered to what extent is it reasonable for an employer to consider an employee’s lack of insight. Firstly noting that sometimes an employer may require confidence that the employee understands what they have done wrong in order to prevent a more serious or damaging repeat of the same conduct in the future. Secondly noting that,
- there are understandable reasons why…an employee may not be willing to admit that the conduct in question was wrong, or seriously wrong, particularly if it was the manifestation of a deeply-held belief.”
Whilst the Court was reluctant to draw any universal or firm rules on this issue, it said that,
- if the case is not one that would otherwise justify dismissal, it is hard that it should be marked up in seriousness because of a failure to make an acknowledgement of fault which the employee would genuinely find difficult.”
The Court expressed approval of an earlier Court of Appeal decision in R (on the application of Ngole) -v- The University of Sheffield [2019] EWCA Civ 1127, which it said was instructive of the “dangers of placing inappropriate weight” on an employee’s lack of insight where the employer has not offered the employee guidance on ways to more moderately express their views in a way which makes it clear that they will not discriminate on such grounds or allow their views to interfere with their work. It is also clear from that decision that the mere expression of views,
- does not necessarily connote that the person expressing such views will discriminate on such grounds.”
What are the key practical takeaways for employers?
Employers face a significant ongoing challenge to balance the rights of all individuals in the workplace. This is not limited to cases involving social media and could equally apply to things an employee has said or done in other forums.
Where an employee’s “objectionable manifestation” of their protected belief is properly separable from its mere expression, then it will only be lawful for the employer to take disciplinary action or dismiss if this is objectively justified and the sanction is a proportionate response to the objectionable way the employee expressed their protected beliefs.
Whilst each case of this nature is highly fact sensitive, and we strongly recommend that specific advice is sought, the employer should consider:
- How has the employee expressed/manifested their belief(s)? Judge the employee by what they have actually said/done, including the tone they have used, rather than what others may illegitimately misinterpret from what they have said/done
- Where and in what circumstances did the expression/manifestation(s) occur? Consider whether this was in public or private, while they were working or outside of work, whether a particular individual was attacked/targeted, how often the behaviour has already been repeated and whether the employee intends to continue doing so
- Is it clear that the employee’s expression/manifestation does not represent their employer’s views? Consider whether they were representing the organisation or made it clear that this was their personal views and not that of their employer
- Are you wrongly assuming that the employee will discriminate? The mere expression of protected views does not necessarily mean that the person expressing such views will discriminate on such grounds
- Has the employee been offered guidance about the impact of their posts? Offer the employee guidance on ways they can more moderately express their protected beliefs in a way which makes it clear that they will not discriminate on such grounds or allow their views to interfere with their work.
- Are you falling into the trap of adopting an entrenched position? The Court of Appeal in Ngole (above) warned against the risk of parties becoming “entrenched” and failing to explore the possibility of finding some middle ground or compromise
- What do your policies and procedures say? These polices/procedures must properly balance the employees’ rights to freedom of speech/freedom to hold and manifest protected religious or philosophical beliefs, against the employer’s need to protect its staff, customers or service users from unlawful discrimination and to protect its reputation
- How real is the reputational risk? An employer will be required to substantiate any actual or feared reputational concerns they have arising from the expression/manifestation of protected religious or philosophical beliefs, and must remember not to overreact to ill-intentioned or partisan complaints it receives
Luke Green is a Partner and Emma Ahmed is a Legal Director and professional support lawyer at Hill Dickinson.