According to social media management company, Sprout Social, 79% of the total UK population use social media with those between 18-24 years old spending the most time online averaging over 6 hours each day. Social media is, therefore, one of the main ways to communicate for many people.
With the majority of the British public now utilising social media, it is no surprise that the social media activity of employees is increasingly talked about in the HR space. These discussions include, for example, in relation to if or when it may be appropriate to discipline or dismiss an employee for the things that they say online, or in the case of personal social media accounts, how much say can an employer have on what employees are permitted to say and the views that they share?
Case Study: Higgs v Farmor’s School [2025] EWCA Civ 109
Background of the case
In the recent case of Higgs v Farmor's School [2025] EWCA Civ 109, a stark warning was issued to employers about how to address and tackle potentially inappropriate social media postings of an employee. This should serve as a cautionary tale to employers that a one-size-fits-all approach is rarely, if ever, going to be appropriate or free from risk.
By way of brief background, Ms Higgs was a pastoral administrator and work experience manager at Farmor’s school. The school received a complaint about Facebook posts which Ms Higgs made which were described as homophobic with prejudiced views. The school investigated the compliant and Ms Higgs was eventually dismissed for gross misconduct. The case before the Court of Appeal primarily centred about Ms Higg’s argument that those views constituted a philosophical belief and therefore amounted to a protected characteristic. However, the case provides useful guidance on how employers should approach social media misconduct. The court agreed that dismissal was a disproportionate outcome despite agreeing that the language used was unquestionably offensive.
The court determined:
- The views which Ms Higgs expressed on Facebook did not influence her work, she had not repeated the comments at work, nor had she displayed any discriminatory attitudes;
- There was no evidence of reputational damage to the school and that circulation of the posts had been very small (Ms Higgs had only around 100 Facebook “friends”) with any risk of a more widespread circulation being speculative; and
- Those reading the post could not reasonably have concluded that Ms Higgs was speaking on behalf of the school and there was no evidence that a connection would be made between Ms Higgs and the school.
Court findings and contextual considerations
This case ultimately shows that context is key. The court itself noted “something that might be unproblematic on a private Facebook page could justify different treatment if communicated in a work setting”. Therefore, had Ms Higgs posted this from the school’s Facebook page or perhaps from her personal LinkedIn account then in those circumstances, it may have been justified that dismissal was an appropriate sanction.
Key lessons for employers
Employers need to balance an employee’s right to free speech with their duty to protect other employees from discrimination and harassment as well as their business interest and reputation. The Higgs case suggests that just expressing a discriminatory or offensive view on a personal social media account is not the end of the story; employers need to assess whether there is any real interaction with the employee’s professional life, can reputational damage actually be evidenced and is there any risk of discriminatory or otherwise inappropriate behaviours being exhibited in the workplace?
Prevention: Social media policies and training
As with many things, prevention is better than cure with regards to conduct which may result in disciplinary procedures. In relation to employee’s social media content, employers should consider implementing a social media policy which sets out the employer’s expectations concerning social media content.
Often such policies cover:
- Personal use of social media during working hours – is it permitted or not?
- Clear expectations on social media communications should not damage the business’ interest or reputation or harass or discriminate against others;
- Expectations on when an employee can or cannot express opinions on behalf of the business; and
- Expectations about disclosure of trade secrets, confidential information and intellectual property.
Where a clear social media policy is in place, the expectations outlined within it can often be relied upon in circumstances where a potential problematic post is brought to the employer’s attention which might warrant disciplinary action. For example, where an employee is alleged to have made a discriminatory post regarding a colleague online, having a policy which explicitly prohibits this can strengthen an employer’s case for disciplinary action.
In addition to having in place a robust social media policy, employers may also wish to consider implementing training, for example, in relation to discrimination in the workplace across the workforce.
The information provided in this article is provided for general information purposes only, and does not provide definitive advice. It does not amount to legal or other professional advice and so you should not rely on any information contained here as if it were such advice.
Wright Hassall does not accept any responsibility for any loss which may arise from reliance on any information published here. Definitive advice can only be given with full knowledge of all relevant facts. If you need such advice please contact a member of our professional staff.
The information published across our Knowledge Base is correct at the time of going to press.
