The Court of Appeal has delivered a significant decision, ruling that dismissing Kristie Higgs, a Christian employee, for sharing gender-critical posts in a private Facebook group constituted direct discrimination based on her protected beliefs.
Kristie Higgs objected to government policy on sex education in primary schools, specifically its promotion of gender fluidity and its treatment of same-sex marriage as equivalent to traditional marriage. She expressed these views in posts that all parties agreed reflected beliefs protected under the Equality Act 2010. Her employer, a state secondary school, dismissed her over these posts, sparking a legal battle that has now reached a definitive conclusion.
Higgs last appeared in court nearly two years ago at an Employment Appeal Tribunal (EAT) hearing. The EAT, in June 2023, overturned an earlier employment tribunal ruling that had rejected her religious discrimination claim. It found the tribunal had applied the wrong legal test but stopped short of deciding the case itself, instead remitting it back for reconsideration. Dissatisfied, Higgs appealed again, arguing the EAT should have ruled outright in her favor given the evidence. The Court of Appeal agreed—at least regarding her dismissal—calling it “unquestionably a disproportionate response” to her posts.
Contents
What’s the Correct Legal Approach?
This case hinged on a nuanced issue: the employer didn’t object to Higgs’ beliefs themselves but to how she expressed them. Recent case law clarifies that even in direct discrimination claims, employers can justify unfavorable treatment if it’s proportionate. This requires courts to weigh the employer’s legitimate interests—such as protecting its reputation—against the employee’s rights to freedom of religion (Article 9) and expression (Article 10) under the Human Rights Convention.
The EAT had provided detailed guidance for tribunals to navigate this balancing act. The Court of Appeal endorsed this as a helpful summary of current law, though it cautioned against turning it into a rigid checklist for every case.
Key Factors in the Court’s Reasoning
When an employer cites reputational harm, the Court of Appeal highlighted three critical considerations:
- Subject Matter: Posts tied to the workplace amplify their impact. Here, Higgs’ comments on sex education clearly connected to her role at a school.
- Manner of Expression: Offensive or inflammatory language heightens reputational risk. Higgs’ posts, while provocative, avoided extreme vitriol.
- Capacity: Views shared in a personal context pose less risk than those linked to an official role. Higgs posted privately, though her school connection was identifiable.
Why Was Her Dismissal Disproportionate?
The Court pinpointed four reasons why dismissal crossed the line:
- The posts weren’t “grossly offensive” nor intended to incite hatred against homosexual or transgender individuals.
- Most objected-to language came from material Higgs reposted, not her own words. While she remained accountable for sharing it, this reduced her culpability.
- The disciplinary panel found no actual reputational damage to the school at the time of her dismissal.
- Neither the panel nor the tribunal believed her views would impair her job performance.
Lord Justice Underhill, delivering the lead judgment, summed it up:
“Taking those reasons together, I do not believe dismissal was even arguably a proportionate sanction… It was no doubt unwise of her to repost material expressed in florid and provocative language… But I cannot accept that that can justify her dismissal, still less so where she was a long-serving employee against whose actual work there was no complaint.”
What This Means
This ruling underscores the delicate balance courts must strike between employers’ interests and employees’ rights to express controversial beliefs. Relevant factors will vary case by case, but the decision offers clarity for future disputes.
Despite its high profile, this case was relatively clear-cut. Yet the Court of Appeal’s judgment provides broader insights for trickier “clash of rights” scenarios. It urges objectivity—focusing on what was said, not what others might infer—and endorses Equality and Human Rights Commission guidance against stereotyping based on philosophical or religious views.