In a recent highly anticipated and significant ruling, the Court of Appeal in Kristie Higgs v Farmor’s School (2025) EWCA CIV 109 has clarified the position on expressing views on social media and provided guidance on how the law protects religious or philosophical beliefs.
This decision has far-reaching implications for employers, particularly in the independent school sector, where the boundaries between personal expression and professional conduct outside of work may become blurred. For senior leaders and school employers, understanding this case and its legal ramifications is essential in navigating the complex relationship between social media activity and employment law.
Mrs Kristie Higgs, a Christian, was employed by Farmor’s School as a pastoral administrator and work experience manager. Mrs Higgs created and reposted Facebook posts in which views were expressed about gender identity and same sex relationships being taught to school pupils. Following a complaint from a parent that Ms Higgs had expressed ‘homophobic and prejudicial views’, the school investigated, suspended and ultimately dismissed her for gross misconduct in January 2019. Ms Higgs appealed her dismissal but was unsuccessful. Even though there was no evidence that Ms Higgs had ever expressed views about gender fluidity or same-sex marriage to pupils or staff at her school, or that she treated pupils or staff differently, it was concluded that there was a potential risk to the school’s reputation.
Ms Higgs issued a claim in the Employment Tribunal (ET) for harassment and direct discrimination. She claimed that her dismissal was discriminatory on the grounds of her religious belief, both a lack of belief that someone could change their biological sex, and a belief that marriage is an institution between a man and woman. The ET dismissed her claims, finding she was dismissed because of the way she expressed her views, which could have caused reputational damage and that this was a proportionate response.
She appealed this to the Employment Appeal Tribunal, which allowed her appeal and remitted the case to the ET to determine whether the school’s actions were objectively justified. The case eventually reached the Court of Appeal (COA), who found in favour of the Claimant. It held that the decision to dismiss was not proportionate and the Claimant was unlawfully discriminated against on the grounds of religion and belief.
The COA emphasised that the Facebook posts used intemperate language but were a ‘long way’ from directly attacking the LGBT community. It acknowledged that the school was entitled to object to the posts; however, dismissal was not the most appropriate response in all of the circumstances. Further, there was no possibility that readers of these posts would believe that her views represented those of the school, and even if parents had read them and thought it made her unfit to do her job, the school could have issued a statement. There was no suggestion that Ms Higgs was unfit to do her job; she had worked there for six years with no complaints, her beliefs had not impacted on pupils and were not expressed at work.
Until this point, there have been mixed findings on the impact of social media conduct, which happens outside of work and employment. Historically, employers have relied on reputational risk, as was the case here.
The COA have made clear that the bar is now high when considering reputational risk, finding that the posts were not ‘grossly or gratuitously offensive’ and that many posts were re-posts and there was no evidence of reputational damage.
The case is also a helpful reminder that disciplining employees for gross misconduct is not straightforward, particularly if the conduct complained of embodies any form of qualifying ‘belief’ under the Equality Act 2010. Careful thought should be applied to ensure that any dismissal can be justified in all the circumstances.
Independent Schools should ensure that their policies are clear, well-communicated, and proportionate. The policy should specifically address the nature of acceptable conduct on social media, particularly when an employee’s conduct could reflect on the reputation of the school.
When drafting or reviewing social media policies, you should:
A vague or overly broad social media policy can lead to legal challenges, especially if the employee’s actions are not clearly prohibited or if the policy was inconsistently enforced.
Discrimination law protects employees from unfair treatment based on nine protected characteristics, including gender reassignment.
Independent Schools must be cautious when dealing with social media posts that touch on issues of gender identity, as well as other protected characteristics. Employers should be mindful that an employee’s right to express their views on sensitive issues should not automatically be dismissed as discriminatory. Instead, employers should assess the context and the impact of the views expressed, including whether they harm or undermine the school’s inclusive and respectful culture.
For a dismissal to be fair, employers must have a fair reason for dismissal and follow a fair procedure. This includes:
In Higgs, the COA found that the dismissal was not proportionate given the lack of evidence of reputational risk as well as Mr Higgs previous good conduct. Employers should always consider whether dismissal is the most appropriate sanction in all of the circumstances, especially when less severe measures could address the issue without resorting to termination.
There are circumstances in which dismissals related to social media activity may be justified. Schools should consider the following factors:
This case offers important lessons for independent schools when it comes to managing social media conduct. While employers have a responsibility to maintain a professional, non-discriminatory workplace, they must also respect employees’ rights of expression, even if controversial or unpopular.
Schools must carefully balance these interests and ensure that their social media policies are clear, fair, and consistently enforced. Furthermore, any disciplinary action, including dismissal, must be necessary and proportionate, and employers must be mindful of the legal protections around discrimination.
Ultimately, this case serves as a reminder that employers should approach social media issues with caution, ensuring that any decisions are legally sound and justified in context. Should you find yourself in the unenviable situation where you are grappling with a concern of consequences for your school vs the right of an employee to manifest their beliefs, do get in touch with our team, who would be happy to help.
To book an appointment or to discuss this further, please contact Louise Brenlund at [email protected] at 01732 770660.
This article is for general information only and does not constitute legal or professional advice. Please note the law may have changed since this article was published. We do not accept responsibility or liability for any actions taken based on the information in this article.
