Higgs v Farmor’s School

A crucial update in religious discrimination and freedom of speech claims

A landmark judgment in the case of Kristie Higgs v Farmor’s School was handed down on 12 February 2025 by the Court of Appeal setting a new precedent for future cases that concern protected beliefs in the workplace and freedom of speech.

What was the case background?

The Claimant, Kristie Higgs, was a pastoral administrator and work experience manager at Farmor’s School in Fairford, Gloucestershire (the “School”). In 2018, a parent at the School made a complaint about the Claimant asserting that she had expressed “homophobic and prejudiced views” on her Facebook page. The individual was concerned that the Claimant may exert influence over the vulnerable pupils that end up in isolation (with whom the Claimant was involved with in her role as pastoral administrator).

The Claimant’s social media post was titled “PLEASE READ THIS! THEY ARE BRAINWASHING OUR CHILDREN” and was about the government consultation into making relationships education mandatory in primary schools and relationships and sex education mandatory in secondary schools. The Claimant said in her post that this would mean the children would be taught that all relationships are equally valid and normal. The Claimant said this meant that “same sex marriage is exactly the same as traditional marriage and that gender is a matter of choice, not biology, so that it’s up to them what sex they are.” The Claimant holds various beliefs including the lack of belief in gender fluidity, the lack of belief that someone could change their biological sex/gender and lack of belief in same sex marriage which she believes it is contrary to Biblical teaching.

Following an initial interview with the Claimant and an investigation, she was suspended and had disciplinary charges brought against her by the School. These charges were considered at a hearing in December 2018, and she was later summarily dismissed via a letter in January 2019 for gross misconduct. The Claimant relied on her rights to freedom of religion and expression of speech in appealing her dismissal, but ultimately this was unsuccessful.

As a result, the Claimant brought proceedings in the Employment Tribunal (“ET”) for direct discrimination and harassment on the ground of religion or belief relying on her gender critical beliefs and lack of beliefs. The ET dismissed both of her claims.

However, the Claimant appealed, and that appeal was successful but with a decision to remit the claim back to the ET because it had not considered whether the Claimant’s dismissal was a proportionate response to the way she expressed her beliefs. The ET was tasked with determining whether the School’s actions had been objectively justified.

Although the Claimant had succeeded in her appeal to a certain extent, she believed the Employment Appeal Tribunal should have gone further and held for itself that her claim succeeded. Therefore, the Claimant appealed to the Court of Appeal on that basis before the remittance hearing took place.

What did the Court of Appeal decide?

The Court of Appeal found that the School’s decision to dismiss the Claimant was not a proportionate response to any objection that could justifiably be taken to the way that the Claimant had expressed her beliefs and therefore amounted to unlawful direct discrimination. The dismissal of an employee because they have expressed religious or other protected beliefs (which the employer or a third-party object to) will constitute unlawful direct discrimination.  The Court of Appeal further held that neither the language of the posts nor the risk of reputational damage was capable of justifying dismissal.

The judgment made clear there was no doubt the School was entitled to carry out an investigation in response to the complaint because the posts unquestionably used offensive language, and it would have been irresponsible not to try and ascertain whether there was a risk of serious reputational damage. However, the Court of Appeal doubted whether the investigation needed to be disciplinary in nature and whether it was correct in finding there was a case to answer at the end of it.

How does this impact employers?

The case law in respect of philosophical beliefs and their protection in the workplace is fast moving and, to date, tends to support individuals’ right to express their beliefs even if those include unpopular or potentially offensive statements. In that regard the outcome of this case is not altogether surprising, although each case will be taken on its own merits and will be fact specific.

As a Court of Appeal decision, however, this case is a significant precedent and will help employers establish how best to respond to a third-party complaint where employees published their personal views in the public domain or via a social media platform. It is important to keep in mind that robust speech can be protected as a manifestation of a religious or philosophical belief and employers will only be able to act on something an employee has said if it is ‘objectively inappropriate.’ This is easier said than done given many of the cases involve subject matters that can be emotive, and which can be polarising.

Some considerations to take into account in these situations to assist in avoiding discrimination of any kind are as follows:

• Objectivity - employers should think about what has been said and in what context. For example, are the views grossly offensive and do the views expressed in this way mean there is a likelihood that the person making the comments would treat a particular group differently?
• Proportionality – due process should be followed when investigating instances of this nature and, as the judgment makes clear, a disciplinary process will not always be the right path to follow. Producing a measured assessment of views expressed and their likely impact will help employers ensure their responses are proportionate and not creating a knee-jerk reaction.
• Avoid jumping to conclusions – employees are entitled to hold and express views that others may find offensive, and this does not warrant immediate disciplinary action or even dismissal. Further, Employers must not assume that an employee will discriminate against others because of the views they express and there should be a careful and fact-specific analysis in each case to establish whether the test for harassment under the Equality Act 2010 has been met. The reality is that this presently creates a burden on employers to undertake an evaluation of the legal concepts involved which they may not be qualified or equipped to do. We would recommend employers take specialist legal advice at an early stage given the ever-changing legal landscape in this area.
• Consider reputational harm – consider the audience to whom the views have been expressed and the likely impact on the operation of the business. A sensible question to ask is would a reasonable person assume the person expressing these views is speaking on behalf of the organisation in the context in which it is said? If not, the reputational damage to the organisation is likely to be low risk and therefore such action is unlikely to warrant disciplinary action for damage to reputation.

If employers have any queries or concerns in relation to freedom of speech in the workplace, we recommend getting in touch with a member of our team who can assist in providing pragmatic and proportionate advice in navigating these complex issues.

Shakespeare Martineau LLP