In today’s increasingly polarised world, the workplace is not immune to the expression of contentious views—particularly on social media. Gary Lineker’s recent departure from the BBC brought this issue into sharp focus and sparked widespread discussion about the boundaries between personal expression and professional conduct.
At our recent Coffee & Catch-up session, we explored how employers can navigate these complex situations. Central to our discussion was the landmark case of Higgs v Farmor’s School, which offers timely guidance on balancing an employee’s right to express their beliefs with the need to foster and maintain a respectful and inclusive work environment.
By way of background, Mrs Higgs worked for Farmor’s School for six years, as a pastoral administrator and work experience manager. Following a complaint to the school, Mrs Higgs was dismissed for posting what were essentially gender critical beliefs on her personal Facebook account. The school was concerned, by reason of her social media posts, that she would be perceived as holding unacceptable views in relation to gay and trans people, which could damage the reputation of the school. She pursued a claim of direct discrimination and harassment. Mrs Higgs’s claim was not successful at the Tribunal, however the EAT upheld her appeal and remitted the matter back to the Tribunal to consider. Mrs Higgs appealed to the Court of Appeal (as she felt the EAT should have determined the matter and not remit the case to the Tribunal). The Court of Appeal allowed her appeal and found that she had been subjected to direct discrimination on the ground of religion or belief as her dismissal was not objectively justified as being proportionate in the circumstances. The Court of Appeal made the following findings and observations:
- Mrs Higgs’ had posted on her private Facebook account (which had limited reach).
- Mrs Higgs’ beliefs had not impacted her behaviour at work towards pupils, and they were not expressed at work. As such, the school’s treatment of her was not proportionate to the perceived reputational risk.
- That dismissal was not even arguably a proportionate sanction for Mrs Higgs’ conduct. Although it found that the school was entitled to carry out an investigation into the complaint.
- While it was no doubt unwise of her to re-post material expressed in provocative language (it was not ‘grossly or gratuitously offensive’) and in circumstances where people were liable to realise her connection with the school, the court did not accept that it could justify her dismissal, and still less so where she was a long-serving employee against whose actual work there was no complaint of any kind.
- The fact that she had not shown any insight into the offensiveness of her post when questioned about this during the disciplinary process was not significant.
- Neither the language of the posts nor the reputational damage (of which there was no evidence) were capable to justifying Mrs Higgs’ dismissal.
This case highlights that an individual has an absolute right to freedom of belief, however the freedom to express that belief can be restricted if the manifestation of that belief (i.e. the manner in which that belief is expressed) is objectionable.
Where an employee is dismissed because they have expressed a protected belief, that dismissal will amount to unlawful direct discrimination. However, if the dismissal is motivated not by the expression of that belief but by something ‘objectionable or inappropriate’ in the way the belief is expressed (i.e. manifested), the dismissal may not be discriminatory if the dismissal is objectively justified (which involves considering whether a less severe sanction could achieve the same legitimate aim).
Building on the insights from the Higgs case, we have outlined some practical steps employers can take when navigating similar situations in the workplace:
- Pause before you act
- Avoid knee-jerk reactions.
- Contentious issues can escalate quickly, but it is crucial to take a step back and assess the situation calmly and objectively.
- Seek early legal advice
- These situations often involve complex legal considerations under the Equality Act and the European Convention on Human Rights.
- Early advice can help you avoid costly mistakes.
- Determine if it is a protected belief?
- Is this a genuinely held belief that meets the legal criteria of a protected belief?
- Always be mindful that the law is forever evolving, and new protected beliefs can be recognised by the courts.
- If in doubt seek advice.
- Investigate thoroughly and neutrally
- An individual is entitled to hold and to express beliefs and views that other people may find offensive or controversial.
- Assess whether the belief was expressed in a way that could be considered ‘grossly offensive’ or inciting hatred – this is a high hurdle.
- Examine the language and tone used.
- Understand precisely what words have been used.
- Understand the meaning of the words from the individual’s perspective.
- Understand how the words are (or might be) perceived by others and why.
- Consider the context of the expression:
- Was it on a personal account?
- Who was the audience?
- Was it a post written by the individual or re-posted.
- Consider the connection with work:
- How do the views expressed relate to the employee’s work?
- Are the views clearly expressed as their personal views and not that of their employer?
- Consider seniority of the individual in the organisation (and whether the views could be seen as representing the employer’s views).
- What has been the response to the manifestation of that belief?
- Determine if there is any actual impact on the workplace or the employer’s reputation.
- Avoid stereotyping
- Are there grounds for thinking this will lead to the employee behaving in a discriminatory, harassing, or negative way at work – and has there been any evidence of this?
- Do not assume that expressing a belief automatically equates to discriminatory intent.
- For example, do not assume that a person who expresses gender-critical views must be homophobic or transphobic; or that an employee who expresses concern about the Gaza conflict is antisemitic.
- Each case must be judged on its own facts.
- Balance competing rights
- One protected characteristic does not trump another.
- If the expression of one belief offends another employee, consider whether the conduct amounts to harassment.
- Balance the rights of both parties carefully and proportionately.
- Determine a proportionate response
- What is the legitimate aim the employer is seeking to protect (e.g. protecting others’ rights or the business’ reputation)?
- Identify the various sanctions available to meet that legitimate aim.
- Based on the investigation findings, consider what is a proportionate response and choose the least intrusive response which achieves that aim.
- Is dismissal the only option, or is a lesser sanction more proportionate in the circumstances e.g. training and warning?
- Review policies and provide training
- Having in place appropriate policies and procedures, along with regular training, is essential for promoting tolerance of different views within the workplace (including opposing views) and helping to prevent conflicts from arising.
- Action point – ensure your social media policy, code of conduct and equality policies are up to date.
Conclusion
The Higgs case underscores the importance of a measured, legally informed approach when dealing with contentious views. Employers must tread carefully; balancing freedom of expression with the need to maintain a respectful and inclusive workplace.
This is a particular difficult area to navigate. This is only intended to be a summary and not specific legal advice. Should you require assistance, please contact a member of our team.
