Employment law is always developing and nowhere has this been more evident than in the relatively innovative use of the Equality Act 2010 to protect free speech. Employment lawyers have increasingly deployed anti-discrimination legislation to challenge the phenomenon of cancel culture that was rife at the start of this decade and at Gaby Hardwicke our employment team has been at the forefront of these developments.
It has been unlawful to discriminate against someone on the grounds of their philosophical belief since 2003. For a belief to be protected, it must be genuinely held, be a belief rather than an opinion, concern a weighty and substantial aspect of human life, attain a certain level of cogency and seriousness, be worthy of respect in a democratic society and not be incompatible with human dignity or the fundamental rights of others. Beliefs about climate change, the sanctity of human life, socialism, Scottish independence and even ethical veganism have all been held by the courts to be worthy of protection.
A more recent trend has seen the Equality Act being used by those with what might, pejoratively, be said to be less “progressive” views. Significantly in 2021, gender critical beliefs were held to be worthy of respect in a pluralist democracy such as ours in the Maya Forstater case. A number of similar cases then followed but arguably the most important decision in this evolving area of law came from the Court of Appeal earlier this year in the case of Kirstie Higgs v Farmor’s School.
This case concerned the appeal of an employee who had been dismissed from her role as a pastoral administrator at a school because of posts she made on Facebook. One post opposed the teaching that gender is fluid and not binary. Another post contended that same-sex marriage cannot be equated with traditional marriage between a man and a woman. A complaint was made by a parent of the school that these posts contained “homophobic and prejudiced views”. Kirstie Higgs was suspended and ultimately dismissed.
She brought a belief discrimination claim in the Employment Tribunal, which was unsuccessful at first hearing. The Employment Appeal Tribunal subsequently found in her favour but remitted the case to another Tribunal for a fresh hearing. Higgs challenged that decision, arguing that the EAT should not have remitted the case because on the facts the school had no defence to her claim. The Court of Appeal agreed with her.
They found that the dismissal of an employee merely because they have expressed a religious or other protected belief to which the employer, or a third party, objects will constitute unlawful direct discrimination within the meaning of the Equality Act. Fortunately, in most cases it will be rare for an employer to dismiss an employee simply because they hold or have expressed a belief. Usually, a dismissal occurs because the employer or a third party object to the manner in which they have expressed their belief.
Here the Court of Appeal also gave valuable guidance. In a manifestation case, the employer’s actions may be capable of justification if and only if the employer can show that its actions were proportionate and legitimate. In other words, the employer would have to demonstrate that dismissal was the only option available to it given the circumstances, which is a high hurdle to overcome.
In Higgs the Court concluded that the posts were not grossly offensive, the school’s reputation had not been damaged by them and the parent who had complained and in turn the school were guilty of making stereotypical assumptions, namely that by expressing such views, Mrs Higgs necessarily had an animus against gay people. The two things do not follow. Expressing concerns about illegal immigration for instance, cannot, of itself, be equated with racism. Employers making kneejerk reactions of the kind that were prevalent just a few years ago, will now leave themselves exposed to costly discrimination claims.
The importance of being free to express opinions that may shock or offend was fundamental. The courts have previously held that “freedom to only speak inoffensively was not worth having” and political speech was “particularly important”.
Higgs is a welcome clarification on this developing area of law and is likely to lead to many more cases being brought to the Employment Tribunal. The lesson for employers is that they should think very carefully before dismissing employees for the things they post on social media, especially where they espouse political or similar beliefs. Above all, employers should take advice from a specialist lawyer and if they do feel that disciplinary action is justified, they must very carefully consider their reasoning.
Paul Maynard, who heads up our employment team, has been heavily involved in these developments. He currently acts for Saba Poursaeedi, a Reform Parry candidate at the last election who was dismissed from his role by Hightown Housing Association on the ground that his beliefs did not align with the Housing Association’s “values”. The facts of his case were used as a case study by Baroness Fox of Buckley in a recent debate in the House of Lords on amendments to the Employment Rights Bill and can be read here: My Lords, I put my name down on…: 21 May 2025: House of Lords debates – TheyWorkForYou
Paul also represents the barrister and political journalist Jon Holbrook in his ongoing claim against his former chambers, Cornerstone, following his expulsion for what they considered to be an offensive tweet. Details of his case can be found here: Jon Holbrook – Expelled & twice exonerated barrister
Paul was instructed by the Free Speech Union to act for the former ACAS conciliator Sean Corby who had been dismissed for giving interviews to various media outlets including GB News about his treatment after complaints had been made about posts on an internal communications platform. The posts espoused his beliefs against critical race theory. In a ground breaking and widely publicised decision the Employment Tribunal found that his beliefs were protected under the Equality Act Microsoft Word – 1805305.2022 judgment on preliminary issue_.docx. Mr Corby’s case continues in both the EAT and Employment Tribunal.
Click here for further details of the recent cases and deals undertaken by our employment team.