13/02/2025

Employers often face challenges in balancing the rights of employees with conflicting views, such as gender-critical beliefs and those regarding sexual orientation or same-sex marriage. These cases are frequently fact-specific, with actions that may be appropriate in one instance not being suitable in another. However, the recent Court of Appeal judgment in the case of Kristie Higgs v Farmor’s School provides a helpful framework for employers navigating this complex issue.

Case Overview

Kristie Higgs, a teacher at Farmor’s School, was dismissed over two posts on her personal Facebook account, made under her maiden name. The posts, which criticized same-sex relationships, were deemed transphobic and homophobic by a parent who complained to the headteacher.

Legal Proceedings

In the tribunal, it was argued that Higgs was entitled to hold her views but was dismissed due to the objectionable manner in which she expressed them. Initially, the Employment Appeal Tribunal (EAT) had remitted the case back to the Employment Tribunal (ET) due to flawed reasoning. However, the Court of Appeal overturned this decision, finding Higgs’s dismissal to be discriminatory and providing a clear framework for employers.

Key Points from the Judgment

1. Unlawful Direct Discrimination: Dismissal solely because an employee has expressed religious or other protected beliefs, to which the employer objects or fears will offend third parties, constitutes unlawful direct discrimination.
2. Proportionate Response: If the dismissal is motivated not just by the expression of the belief but by something objectionable in the way it was expressed, the employer must show that the dismissal was a proportionate response. This determination must be objective and justified.

Court’s Conclusion

The Court concluded that the factors relied upon by Farmor’s School could not justify Higgs’s dismissal:

• There was no reason to believe that Higgs, who had worked at the school for six years without complaint, would express such views at work or display discriminatory attitudes towards pupils.
• Although the posts’ language was rhetorical and provocative, it did not express hatred or disgust for gay or trans people. Higgs stated she endorsed the content of the messages, not their language.
• The risk to the school’s reputation was minimal, given the limited access to Higgs’s Facebook account.

Paragraph 175, offers valuable insights for those who want a quick summary of the case.

Conclusion

This case emphasizes that the appropriateness of behaviour must be determined objectively and that any disciplinary action must be proportionate. Employers must prove that the dismissal is objectively justified, not merely that they believed it to be justified.

It is important for businesses to pause and take a measured response when dealing with conflicting beliefs.