Freedom of Speech in the workplace – finding the balance

By Brodie Pearson

Trainee Solicitor

16 April 2025

Insights News

In the recent case of Higgs v Farmor’s School, the Court of Appeal found that a school worker’s dismissal for gender-critical social media posts was discriminatory.

The judgment, which has been described as a landmark decision, considers the extent of a worker’s right to freedom of speech and to express their beliefs, and the limits of an employer’s right to interfere where a worker expresses their views in a way others complain is offensive or inappropriate.

The decision is an important development in employment law, clarifying the extent to which an employer may be able to objectively justify direct discrimination because of religion and belief.

Facts of the case

Kristie Higgs, a devout Christian, worked at Farmor’s School (“the School”) as a pastoral assistant and work experience manager. Ms Higgs added posts to her personal Facebook page to voice her concerns about the teaching of gender identity and same-sex marriage in schools stating that children were being “brainwashed”. Ms Higgs’ Facebook account was a private account, in her maiden name and did not link her to the School in anyway.

The posts were viewed by a parent of a pupil at Farmor’s School who perceived them as “homophobic and prejudiced” and subsequently complained to the School.

The complaint triggered an internal investigation and Ms Higgs was dismissed for gross misconduct on the basis that her actions could harm the School’s reputation. Ms Higgs comments on Facebook were described by the School during the disciplinary process as offensive and inappropriate.  They also stated that the comments were discriminatory and could be regarded as harassment.

Ms Higgs unsuccessfully appealed the decision to dismiss before bringing her claims in the employment tribunal.  Ms Higgs brought claims for direct discrimination and harassment based on her gender critical beliefs.

ET Decision

The Employment Tribunal decided that Ms Higgs held philosophical beliefs which were worthy of protection under the Equality Act 2010.  This followed other recent case law which had decided that gender critical beliefs were protected as a philosophical belief under the Equality Act 2010.

The Tribunal considered that Ms Higgs social media expressed protected philosophical beliefs including that gender is binary and not fluid;  that same-sex marriage cannot be equated with traditional marriage between a man/woman; and it is not appropriate to teach anything different to young children.

However, the Tribunal did not agree that Ms Higgs had been subject to discrimination or harassment.   The Tribunal considered that Ms Higgs was dismissed due to the manner in which she had expressed those beliefs on Facebook which they considered to be inappropriate and inflammatory, not because of those beliefs.

EAT Decision

The EAT allowed Ms Higgs’ appeal, holding that the Employment Tribunal had failed to question whether the School’s conduct was because of, or related to, the expression/manifestation of Ms Higgs’ protected beliefs and that they should have considered whether there was a sufficiently close or direct nexus between her protected beliefs and her social media posts. As such, the EAT concluded that the ET had failed to carry out a proportionality assessment of the School’s actions against Ms Higgs’ rights to freedom of belief and freedom of expression, which are important and fundamental human rights.

The case was, therefore, remitted back to the Tribunal, but Ms Higgs appealed to the Court of Appeal.  She disagreed that the case should be remitted and argued that the EAT should have made a decision on her case.

The Court of Appeal’s Judgment

The Court of Appeal ruled in favour of Ms Higgs determining that her dismissal was discriminatory.

In essence the Court of Appeal found that the decision to dismiss was disproportionate to the issues.  Whilst the Court felt that Ms Higgs Facebook posts used offensive language, it was reiterated that there is no legal right “not to be offended”.  The Court weighed up the circumstances which included:

1. Her views did not impact her work at the School or affect her treatment of staff or pupils. The context of the posts was that she was expressing personal views and would not have made similar comments in the workplace, which the Court felt was important.
2. There was no evidence that there had been any damage to the School’s reputation, in particular it was noted that Ms Higgs Facebook account made no reference to the School and she used her maiden name, meaning that it was not obvious that the account belonged to her.  Ms Higgs had only 100 “friends” on Facebook meaning the prospect of the posts becoming widely viewed was limited.

In these specific circumstances, dismissal was a disproportionate reaction to the posts.  Whilst the Court did discuss that it was reasonable for the School to investigate the posts, it was not specifically considered whether a lesser disciplinary sanction would have been acceptable in this case.

Key points for employers

The key take away from this case is that in some situations, the actions of an employer which amount to direct discrimination because of the employee’s religion or beliefs can be objectively justified.  This is different from other types of direct discrimination such as race or sex which generally cannot be justified in any circumstances.

This case points out that the holding of a belief is fundamentally different from the way that an employee or worker may choose to manifest that belief.  Dismissing an employee just because they hold a protected belief is unlawful discrimination. However, dismissing an employee because of something objectionable in the way they express the belief is potentially justified. However, the dismissal must be a proportionate reaction and this requires the employer to carry out a balancing exercise of the relevant circumstances.

With many employers now having to deal with conflicting views in the workplace, this case makes it clear that careful thought needs to be given on how to approach a situation where one employee is offended or upset by the views of another.  Employers are obliged to provide their employees with a safe working environment and protect them from harassment.  However, this case makes it clear that there is no right not to be offended and that a balance needs to be struck, taking into account the fundamental rights to freedom of belief and expression.

Before an employer considers taking action against an employee for expressing what they may consider to be offensive or inflammatory views, issues to consider will include: have the views been expressed in a personal or workplace setting; does the way in which an employee expressed their views have any impact on their work or their interactions with work colleagues and contacts; and is there any evidence of a genuine risk to the reputation of the business.

This is a complicated area of discrimination law and the outcome of any particular case is likely to be fact dependant.  If you require further advice on these issues, or any other employment law matters, please contact Taylor Walton’s employment team here.

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