THE dismissal of a school worker for social-media posts about issues of gender and sexuality was not proportionate and amounted to unlawful direct discrimination, the Court of Appeal has ruled.
Kristie Higgs was dismissed from her position as pastoral administrator and work-experience manager at Farmor’s School, Fairford, in Gloucestershire, in 2019, after posts that she had written on Facebook the previous year were brought to the school’s attention.
Mrs Higgs’s posts included assertions that proposals to teach children about LGBTQ relationships in sex-education lessons amounted to “brainwashing”, and that “expressing and teaching fundamental Christian beliefs, relating to the creation of men and women and marriage, will in practice become forbidden”. In another post, she had described the concept of gender fluidity as a “perverted vision”.
In 2020, an employment tribunal ruled that Mrs Higgs had been lawfully dismissed, as the decision had been made on the basis of her use of social media rather than with reference to her religious beliefs (News, 30 October 2020).
In 2023, the Employment Appeals Tribunal (EAT) ruled in her favour, but ordered a new tribunal to reconsider the case (News, 20 June 2023). The judgment made reference to an intervention by the Archbishops’ Council, which pointed to the “Pastoral Principles” on “disagreeing well” in the Church of England.
In a two-day hearing in the Court of Appeal Civil Division last October, Mrs Higgs challenged the EAT’s decision to order a fresh tribunal, which her lawyers said was “unnecessary” (News, 11 October 2024).
In a judgment handed down remotely on Wednesday, Lord Justice Underhill, sitting with Lord Justice Bean and Lady Justice Falk, ruled that the EAT had been wrong to order a new tribunal, and that Mrs Higgs’s dismissal “constituted unlawful discrimination on the ground of religion or belief”.
The ruling said that, under the Equality Act, an employee could not be dismissed merely for expressing a religious belief to which an employer objects. “However, if the dismissal is motivated not simply by the expression of the belief itself . . . but by something objectionable in the way in which it was expressed, determined objectively, then . . . the dismissal will be lawful if, but only if, the employer shows that it was a proportionate response to the objectionable feature — in short, that it was objectively justified.”
The school had sought to justify Mrs Higgs’s dismissal, the ruling said, on the basis that her social-media posts “were intemperately expressed and included insulting references to the promoters of gender fluidity and ‘the LGBT crowd’ which were liable to damage the school’s reputation in the community. . .
“However, neither the language of the posts nor the risk of reputational damage were capable of justifying the Claimant’s dismissal in circumstances where she had not said anything of the kind at work or displayed any discriminatory attitudes in her treatment of pupils.”
Responding to the ruling, Mrs Higgs said in a statement: “Expressing biblical Christian teaching on gender and sexuality may appear to be offensive to those who hold the opposite views, but as today’s judgment signals, Christians have a right to express their beliefs publicly.”
Writing on the website of Schools Week, Joanne Moseley, a practice development lawyer at Irwin Mitchell, wrote: “This judgment makes it clear that robust speech is protected as a manifestation of a religious or philosophical belief. Employers will only be able to take action for something an employee has said if it is objectionably inappropriate.”
