For those with a particularly keen eye on employment law, you will have seen that this week
the Court of Appeal handed down a highly publicised decision in the case of Higgs v Farmor’s
School.
Case Facts
Mrs Higgs worked as a pastoral administrator and work experience manager at Farmor’s
School. On her personal Facebook page, and under her maiden name, Mrs Higgs reposted a
post regarding the teaching in schools on same-sex relationships, same-sex marriage and
gender. When reposting the post, Mrs Higgs included the comment “PLEASE READ THIS!
THEY ARE BRAINWASHING OUR CHILDREN!” “Please sign this petition, they have already
started to brainwash our innocent wonderfully created children and it’s happening in our local
primary school now”. Her posts did not mention Farmor’s School, which was not in fact a
primary school.
A parent complained to the school about the post, which the parent said demonstrated that
Mrs Higgs held homophobic and prejudiced views against the LGBTQ+ community. Mrs Higgs
was suspended. After a fair disciplinary process, the school found that Mrs Higgs had breached
its code of conduct which prohibited unlawful discrimination. Mrs Higgs was later dismissed
for gross misconduct.
Mrs Higgs brought a claim in the Employment Tribunal for direct discrimination and
harassment on the grounds of religion or belief. The tribunal agreed that her beliefs (including
the belief that gender cannot be ‘fluid’ and the lack of belief that an individual can change
their biological sex or gender) were protected by the Equality Act 2010. The tribunal also held
that Mrs Higgs had no real expectation of privacy in relation to her Facebook posts and that
the school had been entitled to take action in relation to them, on the basis that “anyone
posting on such a platform as Facebook effectively loses control of their posts, at least when
a large number of people can access them”.
At the first hearing in the Employment Tribunal, the ET considered that Mrs Higgs had not
been discriminated against because of her protected beliefs. The tribunal found that Mrs Higgs
had been disciplined and dismissed because of the nature of her Facebook posts which went
much further than those beliefs, and because of the school’s concerns that someone reading
her posts could reasonably assume that she held homophobic and transphobic views.
Mrs Higgs appealed the decision first to the Employment Appeals Tribunal and then to the
Court of Appeal where the court decided that Mrs Higgs dismissal was unlawful and
discriminatory under the Equality Act 2010
Practical Implications for Employers
In some respects, the fact that Mrs Higgs was successful in her appeal is a bit of a red herring.
The most important element of the judgment for employers is the guidance on how employers
should manage situations where an employee expresses personal opinions that might be
offensive to others.
More generally, employers cannot simply dismiss an employee because they have expressed
a protected belief; religious or otherwise, simply because they, another employee, or a third
party objects to it. This protection will apply no matter the employees length of service,
including within the first 2 years of employment. Employers need to consider what the person
has actually said, the language they have used and whether it impacts their ability to do their
job before rushing to judgment. The Court of Appeal’s judgment shows that the threshold for
speech being objectionable is high.
The judgment suggests that where there is no evidence that an employee’s social media
comments impact on the employee’s work, and the risk of reputational damage is speculative,
dismissal is unlikely to be deemed proportionate in ‘protected belief’ cases and is likely to be
an unfair dismissal. A disciplinary process will not be unfair in and of itself just for investigating
comments of this sort and often would be desirable in order to investigate the facts and form
a conclusion. But dismissal based on the beliefs alone is likely to be unfair, unless the
employee expresses these beliefs in an objectionable way. In which case then the employer
will be entitled to take proportionate action up to and including dismissal.
Whilst in the Higgs case dismissal was deemed to be disproportionate, this case confirms that
where an employer wishes to discipline or dismiss an employee for how they express a
religious or philosophical belief, provided an employer considers objectively whether the
behaviour is clearly inappropriate, they will be able to take any proportionate disciplinary
action and any disciplinary action must be proportionate.
As always, this advice is general in nature and will need to be tailored to any one situation.
As an RMI member you have access to the RMI Legal advice line, as well as several industry
experts for your assistance. Should you find yourself in the situation above, contact us at any
stage for advice and assistance as appropria
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