On 12 February 2025, in the case of Kristie Higgs (KH) v Farmor’s School (the school), the Court of Appeal (CA) held that the dismissal of a school employee, after she expressed protected beliefs on gender and same sex marriage on Facebook, was discriminatory. For the full judgment please click here. In this insight, we look at the reasons for that decision and key takeaways. 

The law 

If an individual holds a protected belief, they are protected under the Equality Act 2020 (EqA 2010) from discrimination and harassment both in the workplace and in the provision of services, which is due to either:-   

1. The belief (of itself), or,  
2. How the belief is manifested (expressed).  

In 2021, the CA’s decision in Page v NHS TDA and Page v Lord Chancellor and another introduced an objective justification defence to direct discrimination cases concerning the manifestation of belief. This has two elements (1) is the belief manifested in a way “to which objection could justifiably be taken” (in other words, in a way that is objectively objectionable or inappropriate)? (2) If yes, then any manifestation or expression of it can be lawfully restricted, but only where the restriction imposed is objectively justifiable. See our Insight on the Page case for further details. 

The facts of this case 

KH, had been employed by the school as pastoral administrator and work experience manager. She was a Christian, and held two key beliefs - 1) gender is binary and not ‘fluid’, and 2) that same-sex marriage cannot be equated with traditional marriage between a man and woman – and, accordingly, it is wrong to teach anything different to children.  

A complaint was received by the school from a parent in 2018 regarding a number of posts KH had made, using other people’s material, on Facebook. KH had used a private account that was in her maiden name, and which did not expressly connect her to the school.  The posts expressed her beliefs in relation to a change in the government’s sex-education policy for children. In one of the reposts, views were expressed that teaching children that all relationships were ‘equally valid and normal’ and gender was ‘a matter of choice, not biology’. KH had commented that in her view this was an act of ‘brainwashing’. The complainant reported that they found the views expressed in the posts, ‘offensive…homophobic and prejudiced’ and there was concern expressed that KH could ‘exert influence over the vulnerable pupils.’   

The school commenced a disciplinary investigation and KH was suspended. The school found that KH’s posts created a risk of harm to the school’s reputation and that readers of the posts may be concerned about KH’s suitability to work with children. KH did not remove the posts and disputed this but conceded that some of her language was not ‘the best language to use’. KH was summarily dismissed for gross misconduct due to the nature of the misconduct and her ‘lack of insight’ into the implications of her actions.  

KH brought claims in the Employment Tribunal (ET) under the EqA 2010 for direct discrimination and harassment on the grounds of her religion or belief. 

The ET and Employment Appeal Tribunal (EAT) decisions 

The ET rejected KH’s claims, finding the real reason for her dismissal was not her religious beliefs or her expression of them, but the school’s concern that her Facebook posts might lead parents to think that she held homophobic or transphobic views. 

The EAT allowed KH’s appeal. The EAT held that KH's beliefs were protected and that her Facebook posts amounted to a manifestation of her beliefs. However, the EAT did not decide KH’s claim. Instead, the case was remitted back to the ET to decide if the school’s actions were due to the expression of KH’s belief. If so, then the ET would need to carry out a proportionality assessment to decide (1) whether KH “had manifested her belief in a way to which objection could justifiably be taken”, and (2) if so, whether the school’s response in dismissing her was objectively proportionate.  

The EAT determined that the ET’s assessment should consider the following:  

1. the content, tone and extent of the manifestation;  
2. the worker’s understanding of the likely audience;  
3. the extent and nature of the intrusion on the rights of others, and any consequential impact on the employer’s ability to run its business;  
4. whether the worker has made clear that the views expressed are personal, or whether they might be seen as representing the views of the employer and so present a reputational risk;  
5. whether there is a potential power imbalance given the nature of the worker’s position or role and that of those whose rights are intruded upon;  
6. the nature of the employer’s business, in particular where there is a potential impact on vulnerable service users or clients;  and, in respect of the response by the employer, 
7. whether any restriction or sanction imposed is the least intrusive measure open to them. 

KH appealed the EAT’s decision to remit the case back to the ET.  

The CA’s decision 

The CA upheld KH’s appeal and her claim on the basis that; “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.” 

The CA also confirmed the following:- 

1. The CA’s decision in Page remains good law and sets out the correct approach in manifestation of belief cases (see above under the heading ‘The Law’) as it cannot have been the intention that employees should “enjoy an absolute right not to suffer any adverse treatment on the basis of conduct manifesting their religious or other beliefs, whatever the nature of that conduct and whatever the circumstances.”  
2. The guidance provided by the EAT (above) when conducting a proportionality assessment is endorsed by the CA, albeit that it echoes the EAT’s “strong note of caution” that “there can be no one-size fits all approach”.  
3. An employee’s past performance should be considered. There have been no complaints about any aspect of KH’s work for over six years and she was clear that her beliefs would not impact on her work. The CA found that it would have been open to the school to issue a statement making it clear that it was confident that there was no risk that the Claimant’s views would affect her attitude towards gay or trans pupils or parents. 
4. When deciding whether to take any action, employers must be careful to judge an employee’s statements “by what they actually say (albeit including any necessary implications) rather than by what some readers might choose illegitimately to read into them.” This is an important point for employers to note when considering social media posts and expressions of belief by staff generally. In this case, the CA found that the language in the reposts, and the language used by KH when sharing them, did not pass the threshold suggesting that, read in context, “it does not appear to be primarily intended to incite hatred or disgust for homosexuals or trans people”, but were part of a “series of derogatory sneers” that were a long way from any “direct attack”.  
5. Where the employee lacks insight, if the case is not one that would otherwise justify dismissal, it should not be “marked up in seriousness” because the employee has not acknowledged fault because to do so would be genuinely difficult for them and/or because the employer had never advised them how to more appropriately express their views. The CA acknowledged that “the position may be different where the employer needs to be confident that the employee understands what they have done wrong in order to prevent a more serious or damaging occurrence of the same conduct in the future”. 

What to take away 

This judgment has provided much needed clarity on the law, the extent to which an individual’s right to freely express their protected beliefs can lawfully be objected to, and limited by, their employer. 

Employers may take action where they are concerned that the employee’s expression may cause reputational harm (or there is a risk of it). However, the response must always be a proportionate one.  

The key takeaway is that there is no ‘one size fits all approach to expression of belief cases; what is a reasonable and proportionate response by an employer will depend on the specific facts of each individual case.   

How Capsticks can help 

We have significant experience in supporting employers to prevent discrimination and harassment, including by drafting equality and diversity policies, codes of conduct and delivering training to employees at all levels.  

We also help organisations to manage concerns and difficult issues, deal with any complaints that may arise regarding the expression of protected, and sometimes conflicting beliefs, through conducting investigations, supporting decision makers and HR, and defending any employment tribunal claims brought regarding discrimination and/or harassment on the basis of protected beliefs. 

If you would like access to advice, training or need further guidance on the management of protected beliefs please contact Nicola Green, Jonathan Lewis and Alistair Kernohan.