The extent to which an employee can be sanctioned for sharing their personal views (which might be offensive to others) outside the work environment, often creates a lot of debate. The issue was recently considered by the employment tribunal in the case of Waters v The Active Learning Trust Ltd (Case No 3324619/2019).

Mr Waters was the Christian minister of an evangelical church in Ely. Evangelical Christians believe the Bible is the inspired word of God, and it is a requirement to preach to non-Christians and spread the message to Christians to follow the Bible. Mr Waters also believed that it was his Christian duty to encourage other people to live godly lives, and therefore avoided events and locations at which sin would or might be celebrated.

To maintain himself and his family, Mr Waters was also employed as a caretaker at a primary school in Ely. He was a valued member of the staff. In June 2019, the first-ever “Pride” event was due to take place in Cambridge.

Mr Waters believed that he and the Church fundamentally disagreed with this movement and everything that it stood for Mr Waters posted a message on his personal Twitter account (which identified his role as a Christian minister, but not his employment at the school) which said: ‘A reminder that Christians should not support or attend the LGBTQ “pride month” events in June. They promote culture and encourage activities that are contrary to the Christian faith and morals. They are especially harmful for children.’

Mr Water’s tweet created a ‘backlash’, and he was subjected to abuse and hate mail. There was also much debate within the school community, ultimately resulting in three written complaints to the school about the tweet. This led to an investigation by the school, and then a referral to a disciplinary hearing.

Following that decision, Mr Waters resigned, claiming that he had been employed knowing that he was a Christian minister, and that he would publicly teach biblical truth and ethics, yet he was now being disciplined for doing so. The disciplinary hearing still proceeded, and Mr Waters reiterated his right to freedom of expression.

The outcome of the hearing was that Mr Waters was given a Final Written Warning to last for 12 months because he had posted information on the internet that was damaging to his employer’s reputation, that was homophobic, harassing, discriminatory, and offensive. Mr Waters appealed that decision, but his appeal was dismissed.

Mr Waters brought a claim to the employment tribunal. He argued he had been directly discriminated against because of his religion. That claim failed, as the tribunal found that the investigation was triggered by the receipt of the written complaints and that anyone in that position would have been investigated. The disciplinary action and the sanction were based on the content of the tweet rather than Mr Water’s religion.

However, the tribunal then considered whether Mr Waters had been indirectly discriminated against. Whether in applying its social media policy and code of conduct to all employees, Christians (and Mr Waters in particular) were put at a particular disadvantage. That could not be justified. The tribunal found Christians were at a greater risk of receiving disciplinary sanction for expressing their beliefs or opinions on social media, given that they will have views that are not shared by everyone in society. Mr Waters had been subjected to that disadvantage.

The school, however, argued that such policies met a legitimate aim of protecting the school, eliminating offences by its employees and upholding its legal equality obligations.

The tribunal determined that the school’s position had to be balanced against Mr Water’s right to free expression.They considered that it was ‘highly relevant’ that Mr Waters had tweeted from his personal account as part of his role as a Christian minister.

They concluded that, while it was appropriate for the school to investigate, it was not appropriate to sanction Mr Waters with a warning if that had been confidential. The tribunal acknowledged Mr Water’s argument that the school could have issued a statement at an early stage, saying that whilst he was entitled to practise his religion, and hold such views, those were not the views of the school. That may well have prevented the complaints that followed. The claim for indirect discrimination, therefore, succeeded.

The decision, in this case, was based on specific facts, and it is important to remember that each case will turn on its own set of facts. But it is an important reminder that whilst there is inevitably some overlap between work and personal matters, an employee’s right to freedom of expression outside work is not completely eroded.

Safia Tharoo
Barrister, 40 Bedford Row, London