A Christian school worker who was dismissed after sharing Facebook posts about the teaching of LGBTQ+ relationships in schools has won a six-year legal battle before England’s Court of Appeal.

Kristie Higgs worked as a pastoral administrator and work experience manager at Farmor’s School in Gloucestershire. In October 2018 she shared two private posts complaining that plans to teach her children about LGBTQ+ relationships and sex education amounted to “brainwashing” and “suppressing Christianity”.

Higgs’ posts, which went out to around 100 friends under her maiden name, included re-posted quotes, such as “the LBGT [sic] crowd with the assistance of the progressive school systems are destroying the minds of normal children by promoting mental illness”.

Though her children did not attend Farmor’s School, an anonymous complaint was made to Higgs’ employer which, following an investigation, dismissed her for gross misconduct in 2019.

The key takeaway for employers is to judge an employee by what they actually said rather than by whether that offends – or could offend – others

Higgs brought a claim for religious discrimination and harassment against the school, which defended the termination, arguing that it had nothing to do with her Christian beliefs but because of the language she used in the social media posts.

An Employment Tribunal in 2020 held the employer had lawfully dismissed Higgs, agreeing that her posts could have been seen as homophobic and transphobic, and had “the potential for a negative impact” on the school community.

Before the Employment Appeal Tribunal (EAT) in 2023, Mrs Justice Eady decided that the tribunal had not adequately balanced Higgs’ right to freedom of expression with the conflicting rights and freedoms of others. Instead, the tribunal had jumped to focus on the employer’s concerns about protecting its reputation.

Justice Eady said: “The freedom to manifest belief (religious or otherwise) and to express views relating to that belief are essential rights in any democracy, whether or not the belief in question is popular or mainstream and even if its expression may offend.”

But in granting Higgs permission to appeal the original 2020 ruling, Eady remitted the case back to the tribunal for a fresh determination. Supported by Christian Concern, Higgs successfully appealed the EAT decision so her case could be determined by more senior judges.

In their decision handed down today, Lord Justice Underhill, Lord Justice Bean, and Lady Justice Falk in the Court of Appeal held that Higgs’ dismissal was “unlawful discrimination on the ground of religion and belief”.

The judges said Higgs’ dismissal was “unquestionably a disproportionate response”, and that “even if the language of the re-posts passes the threshold of objectionability, it is not grossly offensive.”

They added that: “There was no evidence that the reputation of the school had thus far been damaged: its concern was about potential damage in the future. As it also accepted, there was no possibility that, even if readers of the posts associated the claimant with the school, they would believe that they represented its own views.

“Any reputational damage would only take the form of the fear expressed by the complainant, namely that the claimant might express at work the homophobic and transphobic attitudes arguably implicit in the language used.”

While the court accepted that if that belief became widespread it could harm the school’s reputation, “the risk of widespread circulation was speculative at best”.

The court added: “There was no reason to doubt her assertion that her concern was specifically about the content of sex education in primary schools; that she ‘wouldn’t bring this into school’; and that she would never treat gay or trans pupils differently. There had indeed been no complaints about any aspect of her work for over six years.”

The judgment explains that the burden is on the employer to prove that disciplinary action is objectively proportionate, not that the employer believed it to be justified.

It remains a challenging area for employers as it’s a balancing act between the employee’s freedoms and those of others, but this judgment upholds a framework for striking that balance

“The key takeaway for employers is to judge an employee by what they actually said rather than by whether that offends – or could offend – others. The mere fact that others may find the views expressed offensive or upsetting will not be enough,” explains Hogan Lovells’ Stefan Martin.

“The test is an objective one – what meaning do the words used actually have? An employer may still take action where the way in which an employee expresses a genuinely held belief offends others, but that action will need to be judged objectively. 

“It will not be enough that someone with a different view finds the belief offensive.” 

Martin says employers should think carefully about whether an employee’s views have any connection with the business, whether they are deliberately offensive, and whether it is clear the views are personal and not attributable to the employer. 

Baker McKenzie’s Monica Kurnatowska says the ruling should be welcomed by employers dealing with complaints about an employee’s manifest religious or political beliefs.

“It remains a challenging area for employers as it’s a balancing act between the employee’s freedoms and those of others, but this judgment upholds a framework for striking that balance,” she says.

“Some of the key things for employers to remember in making these decisions are: (1) there is no right not to be offended; (2) consider the context – determining whether something is objectionable will be context specific; (3) do not make assumptions about an employee’s views or what an individual might do.”

However, Mishcon de Reya’s Robert Lewis warns: “I am concerned about how this judgment might impact vulnerable minority groups as some employees may feel they have carte blanche to express offensive opinions and employers will be reluctant to act.

“It remains as important as ever for employers to ensure that they prevent discrimination and unlawful harassment against their employees.”

Richard O’Dair was instructed by Andrew Storch Solicitors for Kristie Higgs.11KBW’s Sean Jones KC and Cloisters’ Christopher Milsom were instructed by Browne Jacobson for Farmor’s School.

For the intervenors, Cloisters’ Sarah Fraser Butlin KC was instructed by Herbert Smith Freehills for the Archbishop’s Council of the Church of England; Old Square Chambers’ Ben Cooper KC and Spencer Keen were instructed by Branch Austin McCormick for the Free Speech Union; Roger Kiska of Camerons Solicitors acted for The Association of Christian Teachers; Cloisters’ Akua Reindorf KC acted for Sex Matters; and 11KBW’s Joanne Clement KC was instructed by the Equality and Human Rights Commission.