In the social media age, the size and character of their employees’ social media footprint can be a worry for employers concerned about staff behaviour and business reputation.
The Court of Appeal recently had a close look at the interaction between dismissal and online freedom of speech (Higgs v Farmor’s School). The case clarified the obligations of employers when engaging dismissal procedures for employees who have expressed controversial views on social media.
What happened?
In 2019, a Christian pastoral assistant at a Gloucestershire school was dismissed for gross misconduct after an anonymous complaint was made about her social media posts. These posts, made on her private Facebook account under her maiden name, shared strong criticisms of LGBTQ+ education in schools, using terms such as ‘brainwashing’, ‘indoctrination’ and ‘propaganda’. She also circulated a petition to ban LGBTQ+ education in classrooms.
Following an investigation and disciplinary hearing, the school decided that the posts were offensive and in violation of its policies on equality and diversity. The employee, Mrs Higgs, was dismissed and subsequently challenged her dismissal. She contended that she was dismissed not because of any misconduct but due to her sincerely held Christian beliefs, and that her treatment amounted to discrimination based on religious belief under the Equality Act 2010 and a violation of her right to freedom of expression under the European Convention on Human Rights (ECHR).
What did the court decide?
The Employment Tribunal initially dismissed her claims, accepting that the school’s decision was based on concerns about the manner in which she expressed her views rather than the beliefs themselves. However, the Employment Appeal Tribunal reversed this decision and found that the Employment Tribunal had failed to properly consider the proportionality of the school’s actions against Mrs Higgs’ freedom of speech. The Court of Appeal agreed with this decision.
Takeaways for employers
This case illustrates the care that you must take when deciding to dismiss an employee in relation to expression of their beliefs. It provides a useful reminder of key legal principles to keep in mind in this area:
i. Protection of religious and philosophical beliefs: Staff have a meaningful right under the Equality Act and ECHR to express their religious and philosophical beliefs, whether at work or online. Dismissal for the expression of these beliefs can amount to unlawful discrimination. See our guidance on dealing with discrimination complaints, for more.
ii. Belief vs expression: Employees can be dismissed if the manner of their expression might infringe organisational policy or cause reputational harm, but all context factors must be considered. Make sure your staff policies are clear and comprehensive to avoid any misunderstandings. See our guidance on staff policies for more information.
iii. Fair disciplinary processes: Transparent investigations and fair disciplinary processes are essential when dealing with sensitive issues such as employee social media activity. Have a look at our guidance on taking disciplinary action for more.
Further steps
You should regularly revisit your company’s policies on staff behaviour and inclusion at the workplace, including social media use. Our Staff handbook and policies toolkit can help you prepare appropriate policies and procedures for your business to help you stay on the right track.
When conflicts arise you must make sure that you engage in constructive dialogue with your staff, using fair disciplinary or grievance procedures. Our Disciplinary toolkit and Grievance toolkit can provide you with a structure to follow throughout each process.
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Rahul joined Sparqa in 2025 from the Commercial Court, where he served as a Judicial Assistant. He has active interests in commercial, corporate and employment developments which he pursues alongside teaching undergraduate law.