Dismissal of school worker for Facebook posts which contained provocative language ruled as discriminatory

The eagerly awaited decision in Higgs v Farmor's School and others was published yesterday (12 February 2025).

The Court of Appeal (CoA) has ruled that a Christian school worker who was dismissed after sharing online posts criticising government policy on the teaching of sex education in primary schools was discriminated against for her beliefs. 

Background

Ms Higgs (the "claimant") was dismissed for gross misconduct from her role as a pastoral administrator and work experience manager at Farmor's School (the "respondent") in 2019. This was a result of the school receiving a complaint after she posted comments on Facebook disapproving of the teaching of same sex marriage and gender fluidity in primary schools. 

Following her dismissal, the claimant raised claims of direct discrimination and harassment due to her beliefs which included that (1) gender is binary (often referred to as "gender-critical beliefs"); and (2) that same-sex marriage cannot be equated to marriage between a man and woman. 

The tribunal accepted that her beliefs qualified for protection under the Equality Act 2010. However, it held that her dismissal was not related to her protected beliefs, but rather due to the “florid and provocative language” used in her Facebook post meaning she might reasonably be perceived has having homophobic and transphobic beliefs. 

On appeal, the EAT found that there was a close and direct link between the claimant’s posts and her protected beliefs. The EAT remitted the case back to the ET to determine whether the respondent’s actions in dismissing the claimant were because of, or related to, the manifestation of her belief or because she had manifested her belief in a manner to which objection could justifiably be taken. The former amounts to discrimination, the latter does not. For the respondent to show that their actions were lawful, they would have to show that dismissal was a proportionate response to the objectionable behaviour.

Despite the EAT ruling in her favour, the claimant challenged the EAT judgment from 2023 before the Court of Appeal, arguing that the EAT should not have remitted her claim but rather should have held for itself that her claim should succeed.

Court of Appeal judgment 

The CoA held that the claimant's dismissal was not a proportionate sanction for her conduct and determined that the EAT should have gone further and upheld her claim. Her appeal succeeded.

The respondent’s position was that the dismissal was not discriminatory because the Facebook posts included insulting references to the promoters of gender fluidity and LGBT individuals and were liable to damage the school’s reputation. However, whilst the CoA accepted that it was "unwise" of the claimant to re-post material using provocative language in a manner that could connect her to the school, this did not justify her dismissal as she had not made any similar comments at work and the disciplinary panel did not believe that she would let her views influence her work. Furthermore, the comments were made in her maiden name on her personal Facebook account and with only one person known to have recognised her, there was no evidence that the reputation of the school had been damaged and the CoA’s view was that the language of the posts were not grossly offensive.  

It is unknown if either party will appeal to the Supreme Court.

Analysis

This case illustrates the complexities employers face when dealing with conflicting beliefs in the workplace. As is evident from this judgment, each case will ultimately fall on its own facts. Nonetheless, this case provides helpful principles for employers to follow when handling similar matters.

It is key that employers are prepared to promptly and fairly respond to these situations as they often involve managing very strong views in time-sensitive situations. Managing conflicting beliefs, and the manifestations of those beliefs, involves an incredibly delicate balancing exercise to be adopted by employers, and it’s fair to say that the law in this area is not easy to navigate or particularly settled. 

Given the prevalence of these cases and their importance from a cultural and reputational perspective, we are seeing a surge in requests for bespoke training and advice to help employers be as prepared as possible and mitigate the risks of these issues being handled incorrectly. We have a dedicated core team which has specialist experience in this niche area. 

If you’d like to discuss how your organisation can become more prepared, please get in touch with Jen Skeoch or Maddie Joseph. We are hosting a webinar next month on managing conflicting beliefs in the workplace and you can sign up here.

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