Why Bosses Must Take a Proportionate View on Staff Conduct

Published byLiam A Entwistle

11th March 2025

An important ruling provides guidance on free speech at work, and Wright, Johnston & Mackenzie employment law specialist, Liam Entwistle, appeals to employers to review their approach to this difficult subject.

The recent Court of Appeal ruling where a school worker was found to have been unlawfully sacked after sharing posts about LGBT+ relationships, offers a timely reminder to employers about the complexities of handling conflicts of belief in the workplace.

Kristie Higgs lost her role as a pastoral administrator and work experience manager at Farmor's School in Fairford, Gloucestershire, in 2019.

She brought Employment Tribunal proceedings, and after several appeals, her dismissal has been found to be disproportionate and constituted direct discrimination.

While the case specifically dealt with an employee’s social media activity outside of work, its implications stretch far beyond, highlighting the need for businesses to take a measured and legally sound approach when responding to concerns over employee conduct.

Employers must tread carefully, ensuring that any action they take is proportionate and does not expose them to claims of discrimination or unfair dismissal.

In this case, the school had deemed Ms Higgs' posts as potentially discriminatory, arguing that the posts could bring its reputation into disrepute. The Court of Appeal did not agree with this assessment.

This ruling reinforces an important principle: while employers may legitimately want to protect their reputation and ensure an inclusive work environment, they cannot simply dismiss employees for expressing their beliefs, even if they may perceive them to be contentious or unpopular.

The decision does not give employees an unrestricted right to say whatever they like without consequence, but it does set a high threshold for justifying disciplinary action. Employers need to strike a careful balance between upholding workplace harmony and respecting individual rights.

With these considerations in mind, here are some of the key lessons for employers navigating conflicts of belief in the workplace.

Firstly, avoid knee-jerk reactions. Don’t make assumptions about an employee’s intent or character based on a single incident, and don’t jump to a conclusion that what has been said could cause reputational damage.

In reality, an expression of belief - however controversial - is not inherently unlawful, and employers should be mindful of the distinction between holding a belief and acting in a way that harms others.

Secondly, employers must objectively assess what has been said or done. They should consider whether the employee’s speech or actions were genuinely harmful, or if they have been misinterpreted. The Court of Appeal in Higgs warned against reading too much into a social media post or assuming that others would interpret it in the most negative light possible.

If an employee’s words do not cross the threshold of being grossly offensive or inciting hatred, employers should consider whether there is a more proportionate response than disciplinary action. This is why it’s important to be realistic about reputational risks. Employers frequently cite reputational damage as a justification for dismissal, but the courts are increasingly scrutinising these assessments.

In Higgs’ case, the school had received only one complaint, and there was no concrete evidence that her social media activity had caused actual reputational harm. So the assessment of likely harm was more apparent than real.
Employers face a difficult balancing act - they have a duty to maintain an inclusive and respectful workplace but must also ensure that their actions do not infringe on an employee’s rights in a way that could later be deemed unlawful.

By realistically considering the context and impact, being proportionate in their responses, and taking objective, fair action, employers can get the balance right.

This article first appeared in The Scotsman