Dismissal of Christian employee for posts on Facebook was discriminatory

The case of Higgs v Farmor’s School considered whether a dismissal of an employee for sharing posts on Facebook which were deemed by the employer to be homophobic and transphobic was discriminatory.

Background

In 2018, the Claimant, who was employed by the Respondent as a pastoral administrator, shared posts on Facebook which were critical of education in primary schools. In particular, the Claimant appeared to have concerns about government policy on teaching primary school children about same-sex relationships and gender identity issues. The posts that she shared were opposed to such policies and encouraged others to sign a petition against mandatory relationship education. These posts were reported by a parent whose children attended the Respondent school, with reference being made to the posts being prejudiced against the LGBT+ community and raising concerns that the Claimant could exert influence over pupils she worked with.

Following a disciplinary process, the Claimant was subsequently dismissed on the ground of gross misconduct as the posts were deemed by the Respondent to be homophobic and transphobic and risked damaging the Respondent’s reputation. The Claimant argued that the Respondent’s actions in dismissing her constituted discrimination and harassment because of her religious beliefs (being a lack of belief that someone could change their biological sex together with a belief that marriage is an institution between a man and a woman in accordance with biblical teaching). This note focuses on the allegation of discrimination.

The Law

Section 10 of the Equality Act 2010 (EqA 2010) states that:

Belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.

It is therefore clear that the Claimant’s beliefs (or lack of belief in respect of changing biological sex) potentially constituted a protected characteristic. In respect of direct discrimination, section 13 of the EqA 2010 identifies the basis for direct discrimination as follows:

A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

The Claimant was therefore arguing that her dismissal by the Respondent constituted discrimination on the basis that she was treated less favourably because of her religious beliefs.

Decision

The Employment Tribunal initially dismissed the Claimant’s claims. It felt that the Respondent’s actions were not because of the Claimant’s religious beliefs, but rather that its actions were motivated by the language used in the Facebook posts and its concern that the Claimant might reasonably be perceived as holding homophobic and transphobic views. The Claimant appealed against this decision.

The Employment Appeal Tribunal (EAT) found in favour of the Claimant, concluding that the Employment Tribunal had taken too narrow an approach and had failed to address a number of necessary considerations. In particular, the EAT considered that the Employment Tribunal had failed to engage with the question of whether the posts were in fact a manifestation of her religious beliefs and the connection between the protected belief and the Facebook posts. The EAT concluded that it followed that the Employment Tribunal had not carried out an assessment to balance the interference with the Claimant’s fundamental rights against the legitimate interest arising in respect of the rights, freedoms and reputation of others (i.e. whether the Respondent’s actions were a proportionate response to the way the Claimant had expressed her beliefs). The EAT therefore remitted the case to the Employment Tribunal to determine these points.

However, despite the EAT finding in her favour, the Claimant appealed against this decision to the Court of Appeal (CoA) as she felt the decision to remit the case to the Employment Tribunal was unnecessary and that the EAT should have upheld her discrimination complaints.

The CoA therefore considered the matter and agreed with the Claimant. In particular, the CoA noted that it was not in dispute that the Claimant’s beliefs that gender is binary and that same-sex marriage cannot be equated with marriage between a man and woman were protected under the EqA 2010. The CoA further considered that the dismissal of an employee merely because they have expressed a religious or other protected belief to which the employer objects will constitute unlawful direct discrimination under the EqA 2010.

Whilst the CoA acknowledged the Respondent’s argument that the posts in question included insulting reference to the promoters of gender fluidity and the LGBT+ community, which the Respondent argued could damage its reputation, the CoA concluded that the Claimant’s dismissal was not justified or proportionate. The CoA noted that the posts did not directly attack the LGBT+ community, nor did they intend to incite any hatred of that community. Further, the CoA considered that it was not realistic to consider that readers of her posts would believe that her views represented those of the Respondent, and even where such concerns were raised by parents, there were other options open to the Respondent prior to dismissal (for example, making a formal statement). The CoA also took into account the fact that the Claimant had not expressed any such views at work, nor had she displayed any discriminatory attitude towards her pupils. There was therefore no evidence that the Claimant was not fit to work at the Respondent school. The CoA therefore concluded that her dismissal was directly discriminatory.

Comment

This decision is a reminder to employers that employees are entitled to hold and express views on contentious matters, even where such views are controversial or go against the policies of the employer. The important factor is how such views are expressed and communicated. An impact from this decision is that it will likely be harder for employers to rely on “reputational damage” to justify dismissal for employees expressing protected beliefs even if these are expressed in an offensive manner.

It is often tempting for employers to take “knee jerk” decisions when seeing comments made on social media, which is an increasingly prevalent issue, but employers must balance the right for individuals to express their views, even where those views are expressed strongly . This decision makes it clear that employers will be given short shrift in relying on arguments that a dismissal was proportionate to avoid damage to their reputation unless they can demonstrate such a decision is genuinely proportionate in light of the actions of an employee.

It is also of note that the CoA made non-binding comments in making its decision that if an employer stereotypes an employee’s belief (e.g. that those holding gender-critical beliefs are transphobic) then this treatment will be because of the protected characteristic. The impact of this is that where treatment of an employee is markedly influenced (whether consciously or unconsciously) by the employer stereotyping the employee as sharing other beliefs with a group which they may not actually possess, this may amount to direct discrimination. Employers will therefore need to be mindful of what is alleged to have been said, rather than what may be inferred from the conduct in question.

Case reference:  Higgs v Farmor’s School [2025] EWCA Civ 109