Social Media Postings and Legal Context: Lessons from Higgs v Farmor's School - Part 1

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In our first article on the perils of social media postings, we examined the Northern Ireland tribunal case of McDade. One of the keys ‘takeaways’ for employers from that case was the Tribunal’s finding “given the conduct of the Claimant and given the clear and undisputed damage to both customer relationships and workforce relationships” any reasonable employer would have dismissed the claimant for gross misconduct.

This article is the first in a Two-Part article, exploring a relatively recent English Court of Appeal decision Higgs v Farmor’s School [2025] EWCA CIV 109.

This was an important decision on reviewing obligations on the expression of religious and philosophical beliefs under the Equality Act 2010.

Recent GB Experience

In the case of Eweida and Ors v UK [2013] ECHR37 (concerning the wearing of a small cross over an employee’s British Airway’s uniform in breach of its uniform policy), the European Court of Human Rights held that to count as a manifestation of belief under Article 9 of the European Convention of Human Rights, there must be a sufficiently close and direct nexus between the manifesting act and the underlying belief. In a direct discrimination case on religion or belief grounds under the Equality Act 2010, an employer will not be found to have discriminated against an employee on such grounds if the reason for the employer’s actions was not the belief itself but the inappropriate manner in which the employee manifested that belief (as per Page v NHS Trust Development Authority [2021] EWCA Civ255 (In this case, the claimant was dismissed from his employment because he expressed controversial views derived from his Christian beliefs during media interviews, disapproving of same sex couples adopting children.) Following Page case law on the manifestation of belief etc. has developed, focussing on the real cause of the detrimental treatment and proportionality in cases involving ECHR rights such as religion and belief, in effect there is a ‘blending’ of human rights law with discrimination law. The focus is on how the employee has manifested that belief and whether objection could justifiably be taken to counter this. Ultimately, if the consequences of the objectional articulation are not such to justify the action against the employee, this cannot be treated as separate from an objection to the belief itself and thus may amount to unlawful discrimination. Whether an employee’s manifestation of their belief is inappropriate should be tested by reference to Article 9 (2) of the European Convention, otherwise known from Page, as the proportionality test, i.e. balancing the employee’s freedom of expression etc. against the legitimate interests set out in article 9(2) of the Convention. Page, in effect, saw the introduction of an objective justification element into direct discrimination employment claims.

In the 2025 Employment Tribunal case of, Higgs v Farmor’s School, Mrs Higgs, a Christian employed in a secondary school as a pastoral administrator and work experience manager, was dismissed following a parent’s complaint to the school regarding several Facebook posts in which Mrs Higgs re-shared articles about sex education in schools relating to same-sex relationships, same-sex marriage and gender being a matter of choice, and added her own comments, which included “Please read this! They are brainwashing our children! Mrs Higgs was concerned about what was happening at her child’s primary school, not in Farmor’s school where she worked. The parent complainant also expressed the view that Mrs Higgs seemed to find “obnoxious” a category of person that would include several pupils in the school she worked. Mrs Higgs was suspended but denied holding homophobic and transphobic views. After a disciplinary process, she was dismissed for gross misconduct.

Mrs Higgs complained of unlawful direct discrimination on the ground of religion or beliefs (protected under section 4 of the Equality Act 2010 in GB). The employment tribunal decided that Mrs Higgs had not been directly discriminated against rather she had been dismissed because of her “florid and provocative language” in her Facebook posts which might reasonably be perceived as holding homophobic and transphobic beliefs which would not qualify for protection under the EA 2020. The EAT allowed Mrs Higgs’ appeal that she had been directly discriminated against or harassed because of her protected beliefs. However, it also held that the Tribunal had failed to engage with the question as to whether the suspension etc. and ultimately dismissal was because of or related to the manifestation of her beliefs and it should have considered whether there was a sufficiently close or direct connection between her protected beliefs and her Facebook posts. As a result of their failure to apply the proportionality test from Page balancing Mrs Higgs’ rights to freedom of belief and expression and the school’s actions, the EAT remitted the case to the tribunal for further determination.

In Part Two of this article, we will examine the Court of Appeal’s judgment in Higgs and outline the practical lessons for employers and schools managing social media activity. Read the article here.

This article has been produced for general information purposes and further advice should be sought from a professional advisor. Please contact our Employment team at Cleaver Fulton Rankin for further advice.