On 12 February, the Court of Appeal handed down its decision on the case of Higgs v Farmor’s School. On 4 June 2025, the Supreme Court refused permission to appeal against that decision. Since the date of the decision by the Court of Appeal, we have seen a lot of commentary and robustly held views expressed on all social media, following the decision on For Women Scotland, which we covered in our April newsletter
We therefore thought that it would be a good opportunity to remind employers of the matters which should be taken into account when dealing with belief and the manifestation of beliefs, particularly where social media is involved…
Higgs v Farmor’s School
In this case, Mrs Higgs was an employee at Farmor’s School, with pastoral responsibilities. She shared a number of posts on social media, about which one parental complaint was received, raising concerns that Mrs Higgs had shared ‘homophobic and prejudiced’ views on her Facebook page.
The post which Mrs Higgs had shared referred to relationships and sex education in schools, stating that ‘children will be taught that all relationships are equally valid and ‘normal’…’ and calling it a ‘vicious form of totalitarianism aimed at suppressing Christianity’. A later post referred to ‘recruiting children for the transgender roster…stealing the innocence of our children…cramming their perverted vision of gender fluidity down the throats of unsuspecting school children’.
Mrs Higgs was dismissed for sharing the posts. Whilst they were not her own, the school relied on the potential damage which could be done to the school’s reputation, and the fact that Mrs Higgs did not express regret for sharing the posts. Mrs Higgs brought claims for unfair dismissal as well as discrimination on grounds of religion or belief.
At the first Tribunal hearing, the Employment Tribunal dismissed Mrs Higgs’ claims. Mrs Higgs appealed to the Employment Appeal Tribunal who upheld her appeal, and remitted the case to the Employment Tribunal to decide. However, Mrs Higgs appealed to the Court of Appeal, arguing that the EAT should just have made the decision that her case succeeded rather than sending it back to the Employment Tribunal to make a decision.
The Court of Appeal held that Mrs Higgs claim succeeded. The EAT should have simply upheld her claim for discrimination, without sending it back to the Employment Tribunal:
- Notwithstanding that the posts may have been considered to be ‘gratuitously offensive’, dismissal was ‘unquestionably a disproportionate response’
- It was not grossly offensive;
- The language was not Mrs Higgs’ own, and she had made clear that she did not agree with the language used;
- There was no evidence of any actual reputational damage;
- There was no reason to doubt Mrs Higgs’ assertions that she would not bring her beliefs into school or treat any pupil differently;
- Whilst the dismissing managers believed that Mrs Higgs did not have any ‘insight’ into the consequences of her actions, in this case that was not enough to justify dismissal, particularly given that this was a manifestation of a deeply-held belief, and would not have otherwise have justified dismissal in any event.
Belief, manifestation of belief and protection of reputation
So what does this mean for employers?
There are always going to be difficulties in balancing competing views in the workplace. In a world where it is easy for employees to express their opinions on social media, and to thereby share them with a wide audience, the potential for conflict between different groups and the risk of damage to reputation is heightened. However, where situations arise, as above, where employees are expressing deeply-held beliefs which may well give rise to protection under the religion or belief legislation, there are a number of things of which employers need to be aware:
- A dismissal of an employee just because they have expressed a religious or other protected belief will constitute unlawful direct discrimination.
- If the dismissal is not simply because of the expression of the belief, but rather because of something objectively objectionable in the way it is expressed, then the dismissal will be lawful only if it is a proportionate response.
- Just because you may not agree with a belief does not mean that it is not ‘worthy of protection in a democratic society’. In the case of Higgs, as in a number of cases before it, the lack of belief in gender fluidity, lack of belief that someone could change their sex, and belief that same-sex marriage cannot be equated with marriage between a man and a woman were deemed to be beliefs capable of protection under the Equality Act 2010.
- Just because something is posted on social media does not necessarily mean that damage to reputation will follow. Mrs Higgs’ Facebook page did not mention the school and there was no suggestion that the opinions shared were in any way connected to the school. Only one parental complaint was received, and there was no evidence of any damage to the school’s reputation. If you are going to rely on damage to reputation or a genuine risk of such damage, it will be necessary to provide evidence of the same.
- When making any decisions based on social media postings, it is necessary to judge a statement by what it actually says, and not by reference to a concern about what some readers might wrongly read into or infer from it.
These cases are invariably difficult to deal with and, particularly in the current climate where this is front and centre stage in the media, are themselves likely to lead to publicity and the potential for reputational damage, even if none results from the original posts/ beliefs. We would therefore always recommend seeking advice when balancing competing rights and beliefs, and the team at Tyr are always happy to assist.
Contact details
Gemma.Sherbourne@tyrlaw.co.uk +44 (0)7535 652758 +44 (0)113 521 7556
