Lessons from the Court of Appeal on navigating protected beliefs in the workplace

Protected beliefs have continued to feature prominently in recent employment cases, many of which have centred on balancing "gender critical beliefs" with the rights of individuals in the LGBTQ+ community.  

In the latest case on this issue, the Court of Appeal in Higgs v Farmor’s School has ruled that the Claimant’s dismissal for expressing gender critical beliefs amounted to unlawful discrimination. This is a significant case concerning the manifestation of protected beliefs in the workplace and when action by employers will be proportionate.   

The facts of the case 

The Claimant was a pastoral administrator at Farmor’s School (the School). The School received a complaint that the Claimant had expressed “homophobic and prejudiced views” on her Facebook page. The posts objected to government policy on sex education in primary schools and the perceived promotion of gender fluidity and same-sex relationships, which the Claimant believed threatened the expression of Christian beliefs. The posts were mostly quoted from other sources and were published in the Claimant’s maiden name, making no reference to the School.   

Following a disciplinary procedure the Claimant was dismissed for gross misconduct. The School’s position was that its decision to dismiss was justified on the basis the posts were expressed in an extreme and insulting way, and were liable to damage the School’s reputation. 

The Claimant brought a claim against the School for direct discrimination and harassment on the ground of religion or belief.   

Discriminatory dismissal? 

It was accepted that the Claimant held beliefs which were protected by the Equality Act 2010, namely i) that gender is binary and not "fluid" (a view often labelled as "gender critical"), and ii) that same-sex marriage cannot be equated with traditional marriage between a man and a woman.   

The key question for the Courts was whether the decision to dismiss the Claimant was discriminatory under the Equality Act. The Employment Tribunal rejected this claim, which was overturned by the Employment Appeal Tribunal. The decision was then appealed to the Court of Appeal. 

The Court of Appeal decision 

The Court of Appeal found in favour of the Claimant, holding that her dismissal for expressing protected beliefs on her Facebook account amounted to unlawful discrimination on the ground of religion or belief.   

In order to establish objective justification, the burden of proof is on the employer to show each of the following: 

• The employer’s actions in limiting the protected belief were in response to something objectionable or inappropriate in the way the belief was manifested. 

• In taking action, the employer had a legitimate aim it was seeking to protect. 

• The action taken (in this case, dismissal) was proportionate. Employers should ask themselves if the benefit of any action outweighs the potential harm to individual rights. This will include establishing that the response contributed to the legitimate aim, and that no less intrusive action could have been taken without unacceptably compromising the achievement of the legitimate aim. 

The forum, context, content and manner of what is said will be relevant in assessing proportionality, and is something which needs to be assessed objectively. As the Judge acknowledged, “something that might be unproblematic on a private Facebook page could justify different treatment if communicated in a work setting”.   

In this case, the Court found that even if the School took objection to the Claimant’s posts, the “dismissal was unquestionably a disproportionate response”. In particular, the Claimant was a long-serving employee against whose actual work there was no complaint of any kind. There was no evidence that the Claimant had or would let her views influence her work. Moreover, while the language used in the posts was objectionable, it was not grossly offensive and there was no evidence that the reputation of the School had been damaged as a result.   

Instead, and relevant to the question of whether a less intrusive response was available, the Judge expressed the view that “it would have been open to the School, if it really thought it necessary, to issue a statement making it clear that it was confident that there was no risk that the Claimant’s views would affect her attitude towards gay or trans pupils or parents”. 

Learnings for employers 

Navigating expressions of protected beliefs in the workplace, particularly where the belief conflicts with other protected characteristic or other strongly held beliefs, is challenging for employers. In a situation where no protected characteristic trumps any other, how should employers balance one employee’s right to manifest their religion or belief, while protecting the rights and freedoms of others?   

Recent case law on protected beliefs shows that this is a difficult balance to strike, with many cases finding that action by employers has not been proportionate and has therefore been unlawful. These cases are often inherently fact-specific, but there are some key takeaways from the case law for employers to consider when balancing conflicting rights: 

• The bar is low when it comes to whether a belief is protected: the EAT in Forstater v CGD Europe has set a low bar for protected beliefs, meaning that a broad range of beliefs will be protected under the Equality Act. Details about the statutory test for protected beliefs under the Equality Act can be found here.    

• Even "offensive" beliefs may be protected: it does not matter if a belief is offensive or shocking to some; only beliefs akin to Nazism or totalitarianism or which espouse violence and hatred in the gravest form will not be protected. The significance for employers is that, other than in the most extreme cases, employees should not be treated to their detriment for the beliefs they hold. 

• Manifestations of belief: case law is also clear that the manifestation of a belief will safeguarded and any limitation on manifestation needs to be objectively justified. 

• Take time to reflect before taking action: avoid knee-jerk reactions. This can be hard, because the debate on this issue can be very intense, however, many of the recent tribunal cases tend to have gone wrong because the employer has "picked a side" or been swayed by a particular viewpoint.  

• Proportionality: if an issue arises, any response should be measured, objective and proportionate. Employers should consider whether disciplinary action is necessary to achieve a legitimate aim, and if so, whether a less severe response, such as a sanction short of dismissal, is appropriate.   

• Take account of guidelines from the courts: whether a limitation is justified will always be context-specific; however, the courts have set out factors employers should consider, such as the content, tone and extent of the manifestation, the extent it intrudes on the rights of others, the reputational impact and whether a less intrusive limitation might be imposed. For details, see our blogs:

• • • Protected beliefs in the workplace: recent tribunal cases 

• • • Competing protected characteristics in the workplace 

• • • Can an employer dismiss an employee for expressing personal beliefs? 

The decision in this case has been much awaited and will no doubt attract potentially misleading headlines. But in some senses, it changes little. At its simplest, it underlines the existing position in law around objective justification – particularly regarding the proportionality of the response to the behaviour at issue. 

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, February 2025