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New Diversity, Equity and Inclusion changes to the Actuaries’ Code and Guidance
Jenny Higgins
Eugenie Freeman and Emily Halcrow explain how an employee’s right to their beliefs can be balanced against an employer’s duty to prevent discrimination
Kristie Higgs was employed by Farmor’s School as a pastoral administrator and work experience manager. In 2018, Higgs shared two posts on Facebook that contained critical comments about the introduction of LGBTQ+ relationship education in schools. Although her posts were made privately and under a different name, a complaint from a school parent led the school to investigate the matter. Higgs was subsequently dismissed for gross misconduct on the grounds her posts could be perceived as discriminatory and could bring the school’s reputation into disrepute.
Higgs filed an employment tribunal claim against the school. The tribunal determined that Higgs’s beliefs were protected under the Equality Act 2010, but concluded that her dismissal was based on the way she manifested those beliefs – specifically, the language used in the posts – rather than the beliefs themselves. As a result, the tribunal found there was no discrimination.
On appeal to the Employment Appeal Tribunal (EAT), it was held that the employment tribunal had failed to assess proportionality under the European Convention on Human Rights. The EAT ruled the case was to be reconsidered and emphasised the need to balance the school’s concerns with Higgs’s rights to freedom of expression and religion.
Court of Appeal judgment
The Court of Appeal overturned the employment tribunal’s decision, ruling that Higgs’s dismissal was “unlawfully discriminatory” and “disproportionate”. The court found that, although the language in the posts was provocative, it was not “grossly offensive” or directed at individuals. There was also no evidence that the school’s reputation had been damaged, nor was there proof Higgs’s conduct affected her professional role.
What does the ruling mean for employers?
In today’s society, it is likely that the prevalence of employers having to deal with issues arising from employees expressing their views on social media platforms will continue to rise. The judgment is clear that even potentially offensive beliefs are free to be expressed, provided that such views are not expressed in an objectively objectionable way.
Businesses should proceed with caution when addressing complaints, ensuring any disciplinary action is justified and proportionate. Here are some practical tips for employers facing complaints of this type:
Conduct thorough assessments on a case-by-case basis
Organisations should evaluate each incident on a case-by-case basis and avoid knee-jerk reactions. Any disciplinary action should be carefully assessed for proportionality, and employers should consider whether different sanctions would have less intrusive limitations on individuals’ rights and freedoms. Companies should avoid making assumptions about potential reputational damage and instead consider the factual reality, including:
- the content, tone and extent of the manifestation;
- the employee’s understanding of the audience;
- the extent and nature of the intrusion by the expression on the rights of others;
- whether the employee distinguished personal views from the employer’s views and any reputational risks;
- the nature of the employer’s business and the employee's role and whether the expression of their views impacts the employer’s ability to run the business; and
- the most minimally intrusive sanction/outcome.
Review and update policies
Employers should review their policies and ensure they include clear guidelines on what employees can and cannot post publicly, particularly regarding sensitive and potentially controversial topics. These policies should balance the freedom of expression with the business’s duty to prevent discrimination and harassment.
Provide training to staff
Training should be offered to management and other employees on diversity, inclusion and rights relating to freedom of expression to encourage a culture of respect and understanding.
This article was first published in People Management on 10 March 2025.
About the authors
Eugenie is a Senior Associate in our Employment team. She joined Kingsley Napley in March 2019 following two years at a corporate and commercial law firm based in the City of London.
Emily is an Associate in the Employment team having recently completed her training contract at Kingsley Napley. She acts for both corporates and private individuals across a range of sectors in all aspects of employment law.
further information
If you have any questions, please contact our Employment team.
We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.
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