Robert Lewis, employment team partner for the law firm Mishcon de Reya, explained to HR magazine that the ruling does not change anything for HR professionals on a practical level. Instead, it is “a reminder to HR leaders to guide disciplinary decision makers to consider the reasons for their decision extremely carefully.”
The case concerns Kristie Higgs, who worked a pastoral administrator and work experience manager at Farmor’s School in Fairford, Gloucestershire. In October 2018, a parent at the school complained that Higgs had published homophobic and prejudiced views against the LGBT+ community, on Facebook.
The Facebook post was an edited reshare of someone else’s comments, and expressed concerns about schools “teaching that all relationships are equally valid … and that gender is a matter of choice, not biology”. Higgs describes herself as a Christian, and argued that such teaching went against her Christian beliefs. “They have already started to brainwash our innocent wonderfully created children,” Higgs is alleged to have stated in the social media post.
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Higgs was dismissed from her job at Farmor’s School in January 2019, after an internal investigation. Three months later, Higgs took the school to an employment tribunal, claiming direct discrimination and harassment. These claims were dismissed, and taken to an appeal tribunal (EAT) in 2023, which sent the case back to the original tribunal court.
The case was escalated to the Court of Appeal, leading to Wednesday’s decision, where judges ruled 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.” They added: “If the dismissal is motivated … by something objectionable …, [which must be] determined objectively, then … the dismissal will be lawful if … the employer shows that it was a proportionate response.”
This latest development in a six-year-long case has been described as a landmark decision. “The judgment has significant implications for employers managing situations where employees express personal views which may offend or shock others,” according to Emily Halcrow, employment team associate for law firm Kingsley Napley, who spoke exclusively to HR magazine.
However, Susan Kelly, law firm Winckworth Sherwood’s employment practice partner, agrees with Lewis, that nothing has materially changed for HR leaders and employers. Kelly told HR magazine: “The case does not change the law but is a reminder that the balancing act between the right to express a religious or philosophical belief and the employer’s legitimate considerations around its reputation and the risk of offence or harm to colleagues or others (in this case school pupils) is a very delicate and fact-sensitive one.”
Halcrow added: “The ruling makes clear that dismissing an employee solely for expressing their beliefs may be unlawful. Knee-jerk reactions to complaints must be avoided.
“On a practical level, employers will need to consider all the circumstances before taking any disciplinary action, ensuring they distinguish between what some may find harmful or offensive in the belief itself and the manner in which it was expressed, as well as the actual workplace impact, including the impact on the individual’s ability to do their job (rather than the assumed or hypothetical harm).”
Speaking to HR magazine, Monica Kurnatowska, employment partner for the law firm Baker McKenzie, added: “Disciplinary action will only be justified where the expression was ‘objectionable’. The fact that someone finds a statement offensive will not generally be enough without more context.”
But how should HR professionals decide what constitutes an ‘objectionable’ view?
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“It is now reasonably clear how an employer should decide whether a personal opinion is objectionable,” Lewis stated, referencing the EAT’s list of nine considerations to take into account when deciding on actions to take about the expression of such views. The nine considerations are summarised in 115 (5) on page 39 of the 57-page ruling.
Nicholas Le Riche, a partner for the law firm, Broadfield, reminded HR professionals to “analyse all of the facts in cases where employees have made objectionable views, especially when contemplating dismissal”.
For Lewis, “this ruling is positive for employers and HR leaders, [but] I am concerned that a poor understanding of the decision by employers might lead to reluctance to take action when workers express objectionable opinions. This could have a negative impact on vulnerable minority groups. For example, if employers become more reluctant to address workers expressing racist opinions, that could make the workplace a much less comfortable place for racial minorities.
He continued: “The biggest lesson of this judgment is that employers shouldn’t beat around the bush when taking action in these cases. For example, if the reason that the employer is taking action is because the opinion has a very detrimental impact on the rights of others (such as expressing racist or homophobic opinions) then the employer should be clear about that, and explain why it considers action is necessary.”
Moseley warned HR that “the Court of Appeal’s general comments aren’t limited to social media posts and apply to other situations.”
“It is sensible to have policies in place which set out the standards of behaviour you expect your staff to follow, but it's important not to be too restrictive about what they can say, or do, in their own time, particularly where their comments or profile don't reference you as their employer,” she said.
“Employees are entitled to hold and express views on controversial matters of public interest even when those views offend, shock or disturb others or don't align with your EDI values.”
