The employment tribunal in Waters v Active Learning Trust has ruled that a Cambridgeshire school, which disciplined a caretaker who tweeted that Christians ‘should not support or attend’ a Pride festival, indirectly discriminated against him when it gave him a final written warning.
In June 2019 Rev Keith Waters, who was employed as a caretaker at Isle of Ely primary school, tweeted: “A reminder that Christians should not support or attend LGBTQ ‘Pride month’ events held in June. They promote a culture and encourage activities that are contrary to Christian faith and morals. They are especially harmful to children.”
A “backlash” ensued on local and social media and formal and informal complaints were made to the school, including from parents.
Following its complaints procedure, on 4 June the school sent Waters a letter informing him that he was to be investigated for allegations of misconduct or gross misconduct for the “making and circulation of comments which could be harmful to the reputation of the school”.
On 6 June the head teacher conducted a risk assessment with the HR director at the Active Learning Trust, which runs the school, and decided not to suspend Waters but instead to remove him from some “parent-facing duties” at the school gates. The tribunal described this as a “reasonable decision to take in the circumstances”.
The investigation concluded that the matter be referred to a disciplinary hearing on 25 June but Waters resigned the day before, giving one month’s notice, saying: “It has become absolutely clear to me that whatever your decision in respect of the proceedings you have launched against me, the Active Learning Trust and ergo the school, will no longer countenance freedom of expression, freedom of faith and freedom of speech for any of its employees. That being the case, I have no choice but to leave your employ to ensure that my church and I are protected from being silenced.”
The disciplinary hearing was postponed to 19 July to allow Waters more time to prepare. The head teacher confirmed that she “absolutely recognised and support your right to have personal opinions and religious opinions about things. The rights or wrongs of those opinions I don’t think is what’s in question. I think it’s whether it has broken the codes of conduct and the school policies.”
On 23 July, Waters was given a final written warning which confirmed that he had breached the policy when he “posted information that was damaging to your employer’s reputation: that was homophobic; harassing, discriminatory and offensive”.
Waters appealed the decision but this was not upheld and he did not return to work having already served his notice.
The judge concluded that the reason why the claimant was subject to an investigation was because a parent had made a formal complaint which triggered the investigation under the respondent’s policy. “This was the reason why the claimant was subject to an investigation and this was not because of the claimant’s religion or belief,” said the ruling in Waters v Active Learning Trust and others. As such Waters had not been directly discriminated against because of his religion or belief.
“If [a] comparator had held similar beliefs for non-religious reasons and made the tweet, they too would have been at risk of complaints,” said Judge King.
The tribunal also dismissed Waters’ claim for unfair dismissal. “Had the claimant resigned when the final written warning was imposed, the claimant may have had a case for constructive dismissal… In this case the claimant jumped too soon,” said the ruling.
However the judge did find that Active Learning Trust discriminated against Waters indirectly. “The fact that the claimant made the tweet outside of work on his personal account as part of his role as a Christian minister is highly relevant. It is one thing to have rules that apply during work and something else to extend those to one’s private life outside of work.”
Judge King added that: “To curtail the claimant’s freedom of speech outside of work which is an important part of his role as a Christian minister and thus part of freedom to practise his religion must be done with some exercise of caution and only in the clearest cases where the rights of others are being damaged should the school intervene to prevent the claimant from preaching.
“The giving of a final written warning cannot eliminate the offence caused to others… there were lesser options open to the school such as issuing a statement at an early stage to say that as a non-religious school the claimant is entitled to have those views and practise his religion but that those views are not the views of the school and they take equal opportunities seriously. This may have prevented the complaints and the action that followed.”
Waters said he was pleased with the outcome: “I took legal action, not because I wanted to sue the school, but because what happens to me goes to the heart of what it means to be free to preach the gospel in the UK,” he said. “I believed the issues my case raised were much bigger than anything that was happening to me… I have never been treated in such a heartless and hostile way. The freedom to resign from your job or be silenced from speaking as a Christian pastor is no freedom at all.
The fact that the claimant made the tweet outside of work on his personal account as part of his role as a Christian minister is highly relevant. It is one thing to have rules that apply during work and something else to extend those to one’s private life outside of work” – Judge King
“I still stand by what I said, and I’ll always stand up for the truth. I believe that children’s safety is paramount, and that everyone, but especially Christian pastors, must be able to voice concerns and ‘raise red flags’ where children may be at risk.”
A spokesman for the Active Learning Trust said its schools “seek to promote a tolerant and informed view of the world and holds no political, cultural or religious affiliations”.
“We welcome the decision of the employment tribunal that the claims of direct discrimination and unfair dismissal were not well founded and were dismissed,” he said.
“We are also pleased that the tribunal recognised that our policies pursue the important legitimate aim of protecting the school and trust, eliminating offence by its employees caused to others, preventing social conflict and upholding its legal equality obligation and duty.
“We also note the tribunal’s findings on the issuing of a warning and we will be taking the time to consider our position on this finding.”
In February, Kristie Higgs, the Christian school worker sacked for raising concerns on Facebook about transgenderism and sex education, had her appeal heard at the Employment Appeal Tribunal. Higgs is attempting to overturn a 2020 ruling that her employer did not directly discriminate against or harass her on the basis of religion when it dismissed her.