Discrimination due to Facebook posts 

The Court of Appeal has handed down an important decision dealing with the dismissal of a school employee after she shared posts on Facebook relating to sex education and the teaching of ‘gender fluidity’ in schools. 

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

Facts of the case 

Mrs Higgs, a Christian, worked as a pastoral administrator and work experience manager in a secondary school (the School). She had posted on Facebook expressing concerns about government policies on sex education, which included views against same-sex marriage and gender fluidity. A petition she had shared on Facebook referred to the “brainwashing of children”, claiming it was “a vicious form of totalitarianism” aimed at “suppressing Christianity”.  

A parent saw the Facebook posts and complained to the School that they were homophobic and prejudiced, leading to an investigation and Mrs Higgs’ subsequent dismissal for gross misconduct. 

An employment tribunal dismissed Mrs Higgs’ claims for direct discrimination and harassment based on her religious beliefs. It was satisfied that the School’s actions were not because of her beliefs but due to the perception that she held homophobic and transphobic views, in breach of the School’s own policy. 

Mrs Higgs appealed. The Employment Appeal Tribunal (EAT) found that the tribunal had not properly considered whether the School’s actions were justified under the European Convention on Human Rights (ECHR). It remitted the case back to the tribunal to determine if the School’s actions were a proportionate response to the manner in which Mrs Higgs expressed her beliefs. See our previous summary of the EAT decision. 

Mrs Higgs appealed the Court of Appeal, arguing that the EAT should have gone further in its decision and upheld her claim on the basis that her dismissal was not an objectively justifiable response to the Facebook posts. 

Court of Appeal decision: 

The Court of Appeal agreed with the EAT’s conclusion that the tribunal had not properly engaged with the question of whether the School’s actions were justified. 

The Court emphasised that the right to express religious beliefs is protected under the Equality Act 2010 (provided the beliefs meet the necessary criteria for protection), but this right can be limited if the expression of those beliefs is inappropriate or offensive. 

The language used in Mrs Higgs’ posts whilst considered objectionable by the Court was not grossly offensive. Her conduct had been unwise and her lack of insight into the consequences was a relevant factor to take into account, but in the Court’s view this did not mean that her dismissal was justified. She was a reasonably long-serving employee and there had never been any complaints about her work. The disciplinary panel did not consider that Mrs Higgs would have let her views influence her work.  

The Court considered her dismissal to be “unquestionably a disproportionate response” by the School. It concluded that the School’s actions were not objectively justified and that Mrs Higgs’ dismissal constituted unlawful discrimination, upholding her claim. 

The Birketts view 

The Court’s judgment is an important reminder that employers must carefully consider the context and manner in which employees express their beliefs before considering taking disciplinary action. 

Significantly in this case, the language of the Facebook posts was considered by the Court to be “objectionable” rather than “grossly offensive”. Most of the language was not the employee’s own – she had reposted messages from others and had subsequently made it clear to the School that she did not agree with the language used. 

In addition, there was no evidence that the School’s reputation had been damaged and there was no possibility that readers of the posts would believe that they represented the School’s views. The posts were on Mrs Higg’s personal Facebook account, which was in her maiden name and made no reference to the School.  

This decision highlights the importance, and the difficulties for employers, of balancing the right to freedom of expression with the need to maintain a respectful and inclusive workplace.  Employers should ensure that any disciplinary actions are proportionate and justified, taking into account the employee’s history and the specific circumstances of the case.