And speaking of further consideration brings me to the long-running case of Higgs v Farmor’s School 2025, in which the Court of Appeal revisited the Employment Appeal Tribunal’s decision in a case relating to an employee’s views about gender fluidity and same sex relationships.

We have considered this case before. A link to the previous case summary dealing with the EAT decision can be found here. And for those with even longer memories, a link to the Employment Law Update at the Employment Tribunal stage can be found here.

Mrs Higgs was employed as a pastoral administrator and work experience manager at a Farmor’s School in Gloucestershire. She had been employed for six years when she was dismissed after re-posting gender-critical views on Facebook. The school viewed the Facebook posts as homophobic and transphobic. Mrs Higgs said that these posts were aligned with her Christian values and reflected her lack of belief in gender fluidity and lack of belief in same sex marriages.

In October 2018, a parent complained to the head teacher about the Facebook posts. The school suspended Mrs Higgs, launched an investigation which decided there was a case to be answered, and considered the matter at a disciplinary hearing before a panel of governors, then dismissed her. It also rejected her internal appeal.

In April 2019, Mrs Higgs raised multiple claims in the ET which were whittled down at the preliminary stages to a consideration of whether the disciplinary process and/or the dismissal itself amounted to direct discrimination on the grounds of her belief and/or harassment.  The ET considered her beliefs amounted to a protected characteristic. They applied the principles of Nicholson v Grainger and determined them to be ‘worthy of respect in a democratic society’. This was controversial at the time but has now been endorsed in the well publicised decisions of Forestater and Mackereth.

The ET, however, determined that the school had not treated her as it did because of her beliefs but rather the way in which she chose to express them, sharing what could be perceived as offensive posts on a public forum such as Facebook.

Mrs Higgs appeal to the EAT which ruled that her views were protected, but questioned whether her dismissal was justified and remitted the case to the ET to consider that point.

Although she had been successful on appeal she wanted the EAT to make a finding of the whole case in her favour and not remit the question of justification to the ET.  She therefore appealed again to the Court of Appeal.

The CA emphasised the importance of Freedom of Speech under Common Law and that even speech which shocks or offends is worthy of protection. It noted that the preceding case law makes clear that employers are not obliged to tolerate all conduct which could manifest a belief and referenced in that context the ability to justify the prohibition on wearing a necklace bearing a crucifix on the grounds of health and safety.

It considered whether the EAT should have remitted the question of justification and noted the principle that if an ET has made an error of law which, once corrected, can have multiple outcomes, the choice of outcome to apply must go back to the ET to be decided.  However, reviewing Mrs Higgs’ case, the CA considered there was only one outcome and therefore imposed that outcome rather than endorsing remission.

The CA said that the ET was bound to find that the treatment was not objectively justified and therefore was discriminatory. They said that the school was entitled to object to the posts because the language was offensive to gay and/or trans people and made in the context of a post about sex education in school and therefore relevant to Mrs Higgs’ position. However dismissal was a disproportionate response.

The reason was that the language was objectionable but not grossly offensive was that it was a derogatory sneer rather than an incitement of hatred and was in any event not language of the employee but merely a reposting. The CA took into account that the posts were on her personal account in her maiden name and with no links to the school or any indication that it was the school’s views she was expressing. It also noted that there was no evidence of reputational damage and that Mrs Higgs was a long-serving employee with no previous complaints against her.

The lessons for employers here are to consider carefully your reason for reacting. Is it the belief or the behaviour that you are critical about and is there a justification for dismissal in all the circumstances? Focus on where and how the employee has expressed their views and whether ongoing employment is compatible with the expression of such views if well managed and not impacting the employer’s reputation.