Andrea Williams, Chief Executive of Christian Concern and the Christian Legal Centre, explains why the upcoming case of Kristie Higgs will be a landmark ruling for Christian freedoms
Kristie Higgs was dismissed for gross misconduct by the Farmor’s School in Fairfield, Gloucestershire for Facebook posts she made in 2018 on her personal account about inappropriate relationships and sex education.
Kristie, a Christian, shared two posts to her friends, adding her own commentary.
The posts were made as the debate around Relationships and Sex Education (RSE) was at its peak. She expressed concern about the indoctrinating effect of LGBT education and gender identity ideology on young impressionable children.
The Christian Legal Centre has now been supporting the beautiful Kristie for nearly six years and she’s still waiting to be fully vindicated.
But as well as seeking the justice Kristie deserves, we want to see a strong judgment that protects free speech and upholds the freedom of Christians to work in ordinary jobs without their Christian beliefs being silenced.
Her firing was initially upheld
At the first stage of the case, the Employment Tribunal (ET) dismissed Kristie’s claims for discrimination and harassment, finding that while her views were protected, the articles to which she linked could lead people to think she was hostile towards those who identify as ‘gay’ or ‘transgender’.
Kristie successfully challenged this at the Employment Appeal Tribunal (EAT), which found that the lower tribunal had failed to assess whether the posts were a manifestation of Kristie’s deeply held and protected Christian faith.
But despite this win, the EAT sent Kristie’s case back to the very same tribunal that originally heard her case and determined that Kristie was discriminatory.
Because it would be hard to get a fair hearing, and it raised significant issues for many other Christians, we helped Kristie take her case to the Court of Appeal.
The appeal
A Court of Appeal judgment is highly significant – the court is second only to the Supreme Court of the UK.
It means that in many ways, the case has become much more than just being about Kristie. Win or lose, a precedent will be set which will bind each of the lower courts and tribunals.
The outcome of the appeal is not only important for Christians, but for the public in general, as it will likely set out to what extent people have a right to publicly manifest their deeply held beliefs without fear of losing their jobs.
Social media is the new public square. The judgment will undoubtedly have an impact on countless employees across the country and how, or if, they choose to manifest their beliefs online.
Lady Justice Laing granted permission to appeal earlier this year, ruling that all the arguments Kristie’s lawyers made had a reasonable prospect of success.
She highlighted three important issues that the case raises, which will have significant implications for freedom of expression going forward.
The first issue at stake – judging people objectively on what they actually say
In UK law, employers are not allowed to discriminate against employees on the basis of their religious beliefs and expression.
But this protection isn’t absolute.
To start, not all possible beliefs are protected in this way; for example, explicitly racist views or words that incite violence.
But the waters get muddied quickly. For even if the views a person expresses are lawful and legitimate, an employer is sometimes allowed to discriminate if the words used by an employee, or the manner of manifestation, are judged to be objectively highly inappropriate.
This exception itself is problematic in a number of ways. It was developed by the Court of Appeal in an earlier Christian Legal Centre case, Page v NHS Trust Development Authority [2021] EWCA Civ 255.
Richard Page had been removed as a magistrate for expressing his Christian view that “children do best with a mum and dad” and that, where possible, children in fostering and adoption cases should be placed in a household with a mum and dad rather than one with same-sex couples.
Then, after speaking about his treatment to the BBC, Richard Page was also removed from his entirely unrelated position as a non-executive member of an NHS Trust. One employee of the Trust involved in the LGBT network said, ludicrously, that service users would not come to hospital if they knew Richard was a non-exec director.
The Page case proves the old adage that hard facts (or rather, facts that become ‘twisted’ to serve a prevailing anti-Christian narrative in culture) make bad law.
Richard Page died before he was able to exhaust all of his appeals, meaning a higher court may very well have overturned the Court of Appeal. The Court of Appeal judgment in Page ultimately came to the perverse finding that Richard was rightly removed from his role with the NHS Trust, in part, because he went on national television to discuss his removal as a magistrate without first informing the Trust that he would do so.
One problem which has arisen as a result of the decision in Page is that it has been and is being used opportunistically. This has to stop. It has been expanded on by the courts and tribunals in a way which significantly infringes on the rights of Christians to manifest their beliefs. These rulings claim that Christian beliefs, expressed in certain ways and in certain situations, are so upsetting to others that dismissal from employment is justified.
The reality is that the judgment in Page should be read very narrowly and fact specifically, looking at the extraordinary circumstances. Richard Page was national news at the time when he appeared on television. The reasoning of the Court of Appeal is also dubious because had Richard gone on national television and not discussed LGBT issues, even without his employer’s knowledge, he would not have been dismissed. Precisely stated, it was the substance of what he was saying that was considered objectionable, much more than the way he said it.
Giving permission to appeal, Lady Justice Laing appears to have recognised the deficiencies in the Page test, by warning that judges should not be assessing the manifestation of belief by how a third party may interpret it.
She writes:
“Where the objection is based on the words used by the employee, it is arguable that the defence should only be available if objectively, the employer can legitimately complain about the meaning of those words, and that it should not be available because of the reaction to those words of a person which derives, not from the objective meaning of the words, but from subjective inferences some people might draw, or which the complainant has drawn, from those words.”
In our current climate, there are few statements to which no one would find offence. Wild inferences are sometimes drawn from the most benign statements. What is wrong with saying a child does best with a mum and dad? What is wrong with trying to warn others about sexually explicit material in primary schools?
This is particularly the case when it comes to Christian views on LGBTQ issues. If a Christian says that they believe marriage can only be between one man and one woman, or disbelieve in transgender identities, some people will, sadly, immediately believe that they are bigots who hate LGBTQ people and want to see them suffer. This is far from being true. Christians who critique these behaviours and identities are acting out of love and compassion. But they are often judged based on others’ reactions, not on their words or intentions.
Employers should not be allowed to justify discrimination simply by alleging that people will find an employee’s religious expression offensive. The employee’s actual words should be assessed on its own merits.
The second issue – what do employees need to prove to win their case?
The second issue the Court of Appeal will be addressing is the proper test that should be used to assess discrimination where a religious belief is being manifested.
As things stand, even if an employee has a protected belief and states it in an unobjectionable way, they may be legitimately dismissed.
For example, imagine a senior member of the Christian Concern staff used their social media accounts to deny Christianity and promote another religion, directly at odds with our vision. Even though those views may have some free speech protection, their dismissal could be justified for other reasons.
This is the ‘proportionality test’, where all the circumstances are weighed up, including whether the discrimination was necessary and proportionate.
The EAT judgment in Kristie’s case concluded with instructions on how to assess these sorts of situations – where an interference with the employee’s rights may be justified.
But in her order granting permission to appeal, Lady Justice Laing expresses concern about the burden this approach would put on employees, should they be required to prove that not only had they suffered discrimination because they manifested a deeply held religious belief, but also that the discrimination was not in ‘accordance with the law’ and that it was not proportionate to serving a legitimate aim.
The law in this area is highly technical. It has to do with the joining together of language in the Equality Act 2010 and other language from the European Convention on Human Rights.
Nevertheless, how the Court of Appeal defines the burden placed on Christian employees to establish direct discrimination will have wide reaching and lasting consequences.
Kristie’s case highlights the importance of freedom of religion and the importance of being able to publicly express those beliefs without fear of being discriminated against at work.
Christian employees should not be subject to the whims of those who complain based on their emotional opposition to Christian beliefs. Christians should have the same rights as everyone else to post on their social media accounts about issues of public importance. They should be free to express themselves emotively if the issue in question is near and dear to them. If an employee is treated less favourably because of the substance of their Christian faith it should be treated as discrimination.
Dismissal based on reputational damage should be reviewed with strict scrutiny, never inflating the risk or reputational damage. It should also be based on reality rather than a mere theoretical risk to reputation.
The third issue – what about private social media posts to a limited number of people?
The third issue Lady Justice Laing raises focuses on freedom of speech that does not take place in the workplace, is not in a forum controlled by the employer, and which has a limited number of members.
Kristie’s posts were made in a private capacity. They were on Facebook – not in a place controlled by her employer. And they were sent privately to her friends, not intended for public viewing.
The Court of Appeal will have to assess what weight should give to these factors. To what extent can an employer suffer reputational damage in those circumstances? The court must also give weight to Kristie’s freedom to publicly express her Christian beliefs.
This clearly affects everyone who expresses deeply held beliefs on social media.
Is it safer to post opinions that some may find offensive if you are doing so only to a small number of people (like Facebook friends or another closed group)? Or are these treated the same as public posts (e.g. on Twitter/X), just because someone may take a screenshot and share your post more publicly?
If courts are to rule on these sorts of matters, the Court of Appeal should set a standard which protects the human rights at risk, namely freedom of religion and freedom of expression. It should provide individuals a level of foreseeability as to whether expressing their deeply held beliefs can get them in trouble at work or not. It should also set a test which is as universal as possible, so that employers move away from a subjective approach to treating what they deem to be questionable posts and move towards a uniform approach.
As things stand, employers are emboldened to have overbearing social media policies which unfairly limit employees’ freedoms. The outworking of such policies often put employees in fear of expressing any opinion on social media. Employees, particularly Christians, are deeply fearful that expressing their beliefs, even with great sensitivity, may land them in trouble. The Court of Appeal needs to reverse the direction of travel and give employees meaningful protection.
Conclusion
It has been a long road to the Court of Appeal for Kristie. She has faced numerous hurdles, including a number of recusals by sitting members of the EAT with brazen ideological conflicts of interest with her.
Indeed, we’ve recently discovered that this is also the case with members of the original Employment Tribunal. So, for sure, it is hard to see how there would be justice there.
The extreme nature of her dismissal and the difficulties she has faced in finding an unbiased treatment of her case speaks to the everyday difficulties facing Christians in today’s culture.
After five long years, however, Kristie’s faithfulness and tenacity will pay off in a precedent-setting challenge.
Christianity is for all of life. We are called to be salt and light wherever we go. We cannot hide our light under a bushel. We are Christians at home, at work and on social media.
That’s why free speech is particularly important to us. That’s why so many of the crucial cases around free speech have been Christian Legal Centre cases – because it is mostly Christians who are targeted when free speech is suppressed.
We will keep speaking, no matter the consequences. Ultimately, it’s not about us, and whether we are treated fairly – it’s about whether Jesus Christ’s teaching will be allowed to influence the public square.
Let’s pray for Kristie and for an outcome which benefits Christians across the nation.
Christian Concern and the Christian Legal Centre have supported Kristie’s case for five years. We need your help to keep supporting Kristie and other Christians like her.
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Find out more about Kristie Higgs
