Earlier this year, in the high-profile case of Higgs v Farmor’s School [2025] EWCA Civ 109, the Court of Appeal held that a Christian counsellor’s dismissal by a school for gender-critical social media posts was discriminatory.
The judgment considered freedom of speech, the right to manifest (or express) protected beliefs and whether the school, as the employer, had the right to interfere with expression of those beliefs where others (here, a parent) complained the posts contained “homophobic and prejudiced views”. The Supreme Court have now refused permission for the school to appeal against that decision. This poses a significant shift in employment law and seeks to answer the question: is every act of manifestation of a belief protected by direct discrimination, even if it harasses others?
The Claimant, who worked as a pastoral administrator and work experience manager in a secondary school, was dismissed from her role after a parent complained that her posts on Facebook were “offensive”, “inflammatory” and contained “language which may demean or humiliate pupils”. Ms Higgs argued that she had been discriminated against based on her religion and beliefs and that the posts were an expression of her protected beliefs under the Equality Act 2010 that gender is binary, and that marriage is an institute between a man and woman.
The Court of Appeal held in favour of Ms Higgs, deciding that it would be unlawful direct discrimination for an employer to 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 is reputation) objects. It was also found that whilst the posts included “insulting references”, the language nor the risk of reputational damage to the school could justify her dismissal as Ms Higgs had not expressed those beliefs at work nor had she treated the pupils in a discriminatory way.
The Supreme Court is the highest and final court in the UK where you can appeal a judgment from a lower court. In most cases, an appellant will need permission to appeal before they can formally file the appeal. However, the grounds of appeal are narrow and strictly enforced. Briefly, the permission to appeal is only granted if the Supreme Court considers that is raises an arguable point of law of public importance that deserves the court’s attention, especially since it has already been decided and possibly appealed in lower courts (as in this case).
With the Supreme Court now having refused the school permission to appeal, this brings an end to the court process and the decision made by the Court of Appeal in February this year has been upheld.
The Court of Appeal went on to reason that if the dismissal is not motivated simply by the expression of the belief (or a third parties’ reaction to it), but rather by something that is objectionable in the way it has been expressed, then that decision to dismiss will be lawful, but only if the employer shows the dismissal was a proportionate response to the objectionable part. In short, that it was objectively justified.
The decision modifies the usual approach to such cases under the Equality Act 2010 to conform with the European Convention of Human Rights, and instead adopts a “blended” approach to the law which the court determined was jurisprudentially legitimate.
Many employers will be familiar with dealing with grievances from other members of staff complaining about a colleague’s social media posts. In dealing with such challenging issues, it is a matter of balance which involves assessing both how the employee has expressed or manifested their belief, and whether the employee’s response is proportionate to achieving a legitimate aim.
The Court has also indicated that there are dangers in employers placing inappropriate weight on an employee’s lack of insight into the possible consequences of the way they have manifested their beliefs, particularly where the employer has not provided guidance to the employee on ways to express views more appropriately or avoiding those views interfering with the employee’s work.
What is clear, however, is that even beliefs which may be offensive or shocking to some can be protected although, as the Court comments in Higgs, employees do not have “carte blanche” regarding what they can say in public and how they say it. The Judgment is clear that protection remains in place for employees not to experience harassment in the workplace.
Balancing the rights and beliefs of employees in the workplace is challenging, and the accessibility, influence and immediacy of social media only complicates matters for employers. If you are dealing with this in the workplace, it is worthwhile considering:
In the wake of the aftermath of the Supreme Court’s landmark ruling on “biological” sex (which we cover in full detail here), the judgment in Higgs v Farmor creates further complexities for employers when seeking to protect the interests and beliefs of all employees. Undoubtedly employers and employment law practitioners will welcome the further anticipated guidance from the ECHR.
If you are experiencing the above, we would urge you to seek legal advice as each case is fact sensitive. We are here to support you and your business in addressing and managing discrimination in the workplace by providing advice on your legal responsibilities and duties, advising on disciplinary action, reviewing and updating your policies and procedures to ensure compliance with the law. Please contact Hope Flashman-Wells or Louise Brenlund at [email protected] or on 01732 770660.
This article is for general information only and does not constitute legal or professional advice. Please note that 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.
