Ruling Provides Authoritative Guidance On How The Law Protects Expression Of Religious And Philosophical Beliefs

A significant legal victory has today been delivered in the Court of Appeal which sets a crucial precedent for employee rights and employer responsibilities regarding the expression of controversial views in the workplace.

Kristie Higgs, a school employee, was dismissed for gross misconduct following Facebook posts that were considered homophobic and transphobic. Higgs appealed this decision, asserting that her dismissal was due to her religious beliefs and the fact that she didn’t believe in ‘gender fluidity’ or that someone could change their biological sex, which are protected under the Equality Act 2010. The Employment Tribunal (ET) initially dismissed her claims of discrimination and harassment, finding that she had been dismissed because of the way she had expressed her views (which could have caused reputational damage to the school) rather than because of her actual beliefs.

The Employment Appeal Tribunal (EAT) allowed her appeal, finding that the ET failed to consider whether her dismissal was a proportionate response to the way she had expressed her beliefs, as required by the European Convention on Human Rights (ECHR). The EAT remitted the case to the ET to determine whether the school’s actions were objectively justified.

The Court of Appeal, however, found that the school’s decision to dismiss Mrs Higg’s was not proportionate and thus constituted unlawful direct discrimination. The Court emphasized that her Facebook posts may have used intemperate language but were a “long way” from directly attacking the LGBT community and were not intended to incite hatred or disgust of this group. There was no possibility that readers of her posts would believe that her views represented those of the school and, even if parents had read them and thought that her views might make her unfit to do her job, the school could have shut that down by issuing a statement.

There was no suggestion that Mrs Higgs was unfit to work in a school: she’d worked there for six years and the school hadn’t raised any complaints about her work.

This landmark judgment underscores the importance of protecting employees’ rights to express their beliefs, even if controversial or unpopular. It clarifies that while employers have the right to maintain a respectful and inclusive workplace, any restrictions on employees’ expression of beliefs must be necessary and proportionate.

Expert Opinion

“This judgment is a landmark decision that provides authoritative guidance on how the law protects the expression of religious and philosophical beliefs in the workplace.

"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 their employer’s EDI values.

"Employers often try and justify dismissing members of staff by arguing, like the school did in this case, that their behaviour has potentially damaged their reputation. This decision makes it very clear that the threshold for speech being objectionable is high and employers need to properly consider what the person has actually said, the language they have used, and whether it impacts their ability to do their job before rushing to judgment. The risk of reputational damage shouldn’t be over-egged."
Joanne Moseley from Irwin Mitchell