Kristie Higgs’ victory is a victory for freedom

On 12 February 2025, after nearly seven years of litigation, the Court of Appeal unanimously ruled that Kristie Higgs was the victim of discrimination after she was dismissed by her employer for having expressed her Christian beliefs.

It is a judgment that feels like it has come from a completely different planet to just about every other ruling in recent UK legal history.

Far too often, it has seemed like judges were trying to find ways to justify an employer who had clamped down on an employee’s rights to freedom of expression and religion.

For once, judges have said what freedoms an employee can rely on.

Facts

Kristie, a school assistant, was dismissed for gross misconduct by the Farmor’s School in Fairfield, Gloucestershire for Facebook posts she made on her private account about statutory Relationships and Sex Education (RSE) and LGBT education.

Kristie, a Christian, shared two posts to her friends, adding her own commentary to the shares. 

The posts were made in 2018 as the debate around RSE was at its peak and expressed concern about the indoctrinating effect of LGBT education and gender identity ideology on young impressionable children.

The Christian Legal Centre has been supporting Kristie throughout her seven-year odyssey, leading up to this judgment from the Court of Appeal — the highest court within the Senior Courts of England and Wales.

The opinion was drafted by Lord Justice Underhill, with Bean LJ and Falk LJ concurring. 

The judgment

Kristie had complained of direct discrimination for both having been dismissed by Farmor’s School and for the draconian nature of the disciplinary procedure she was subjected to leading to her dismissal.

The Court agreed that Kristie had suffered direct discrimination in her dismissal, remitting her case to the Employment Appeal Tribunal to determine damages. The Court made no finding as to her treatment during the disciplinary procedure, but noted that it was debatable that the investigation needed to be disciplinary in nature and that it was even more debatable still that she should have been suspended during the disciplinary process.

Recalling the Ngole case, another Court of Appeal precedent where Christian Legal Centre supported the Claimant, the Court noted that the supposed “homophobia” that Kristie harboured was never borne out in her six years of work at the school and was simply not substantiated. 

Ultimately, Underhill LJ determined that dismissal was an unquestionably disproportionate sanction. Even if one were to accept that the school truly believed that Kristie’s posts were gratuitously offensive to homosexual people, the posts still would not have justified the sanction she received:

As regards the dismissal, I am prepared to assume, but without deciding, that the School was entitled to take objection to the posts for the reasons relied on by Mr Jones – that is, that their language was gratuitously offensive to gay and/or trans people because of the way that it described the conduct of “the LGBT crowd” and that it was used in the context of sex education in schools and was accordingly relevant to the Claimant’s work. Even on that assumption, however, I believe that dismissal was unquestionably a disproportionate response.

The Court ultimately found that the posts were not grossly offensive and that they were a genuine manifestation of Kristie’s Christian beliefs. Nor was Kristie wrong for refusing to take the posts down as they were an expression of her deeply held beliefs and not an inappropriate manifestation of her faith.

What the victory means for Christians and others in the workplace

The victory is a landmark judgment with significant precedential weight. It will be binding on all lower courts and tribunals.

The central holding of the case is that where an employer wishes to discipline an employee for how they manifest a religious or philosophical belief, the test must be an objective one based on behaviour which is clearly inappropriate and any discipline must be proportionate.

What this means is that the employer’s subjective apprehension of what might be objectionable is largely irrelevant. The tone of the judgment was that the school was clearly off the mark when it punished Kristie, and that the threshold for establishing an “inappropriate” manifestation of belief was a high one. Ultimately, the judgment should alleviate the fears of Christians across the nation who might otherwise have been worried about posting about their Christian beliefs and suffering adverse consequences for it from their employers.

The Court’s reasoning

The law in this area is labyrinthine, due to the complicated relationships between the Equality Act, Human Rights Act and the European Convention on Human Rights.

In his opinion, Lord Justice Underhill cleared up some of the confusion. Dismissing an employee merely because they have expressed a religious or other protected belief to which the employer — or a third party with whom it wishes to protect its reputation — objects will constitute unlawful direct discrimination within the meaning of the Equality Act.

However, where the dismissal is motivated not by expression of a belief but by the manner in which it is expressed, an employer may justify taking proportionate action.

Finding that Kristie’s Facebook posts were a protected manifestation of her Christian beliefs, the question moved to deciding whether her employers’ actions were proportionate.

When undertaking a proportionality assessment that is compliant with the European Convention on Human Rights, the court must weigh all the competing interests, including factoring in the fundamental importance of freedom of religion and belief.

In Kristie’s case, this meant unpacking the deficiencies in the School’s defence. Underhill LJ first rejected the respondent’s contention that dismissal was justified on reputation grounds. He reasoned that even after the anonymous complaint the school received about the posts, that no reputational damage had occurred or was likely to occur.

The Court factored in that the posts were limited to only Kristie’s Facebook friends, and that the account was linked to her maiden name. Moreover, it found, that even if the public was aware of the posts, that it was clear that the views were those of Kristie, and not the school. 

Underhill LJ also rejected the school’s contention that someone with Kristie’s views could promote a homophobic or transphobic message to pupils or treat them differently because they were homosexual or identified as trans. The Court ruled that there was absolutely no evidence that any such behaviour occurred, making the school’s subjective concerns about the objectionable nature of the posts all the more unfounded.

In the words of Underhill LJ: “neither the language of the posts nor the risk of serious damage were capable of justifying the Claimant’s dismissal in circumstances where she had not said anything of the kind at work or displayed any discriminatory attitudes in her treatment of pupils.”

Religious stereotyping

The Court also briefly grappled with the question of whether the school, and the parent who complained, had been guilty of stereotyping Kristie as a religious bigot, and therefore imputing hate into Kristie’s Christian beliefs where none was objectively present. Ultimately the Court did not rule on this issue, finding it unnecessary to do so because of the finding of discrimination under the analysis discussed above.

In orbiter dicta, the Court however did tip its hat that it would find discrimination on the basis of religion or belief, where the decision-maker mistreats an employee by consciously or unconsciously stereotyping that person’s beliefs as something they may not be. For example, not all people who hold gender critical beliefs hold animus towards people who are transgender; and believing that homosexuality is a sin is not necessarily discriminatory.

This is a critical point. Very often, historic Christian beliefs are written off as hateful. Because there are some people in the Church who oppose these teachings, outsiders assume that Christians take a pick and mix approach to doctrine. They reason that Christians like Kristie must be hateful because they have chosen to believe this doctrine rather than an LGBTQ-affirming one.

Stereotyping Christians in this way is utterly false and it is good to see the Court sending a warning to employers who take this approach.

Concurring opinion of Lady Justice Falk

Lastly, the concurring opinion of Falk LJ is a compelling defence of free speech. While agreeing with everything written by Underhill LJ in his opinion, she goes on to stress the importance of not succumbing to unreasonable or emotive interpretations of what a manifestation of a belief might mean. She recalls that freedom of speech includes the right to offend, and that causing offence does not necessarily mean that the expression of that belief is inappropriate. 

Conclusion

The importance of Kristie’s victory cannot be understated.

Political correctness and civility should not be standards by which employers are allowed to dismiss employees for expressing legitimate beliefs on social media. Nor does a theoretical appeal to reputational damage suffice to divest an employee of their right to freedom or religion. An employment contract is not a licence to govern an employee’s lawful behaviour outside of the workplace.

The Court of Appeal also made clear that the threshold for disciplining an employee for inappropriately manifesting a religious belief is a high one.

This will not only be applied in tribunals but in workplaces themselves. Many HR departments will need to radically rethink their response to cancel culture-style complaints about social media posts.

Kristie’s victory is a huge leap forward for freedom of speech for Christians across the nation — and for everyone else.