With the recent announcement that Elon Musk is to buy Twitter, and his avowed intent to increase its commitment to free speech, attention has turned to what he means by this and how far he intends this commitment to go. One person’s free speech is another person’s hate speech, and the rise in identity politics, coupled with the ease of uninhibited expression on social media, can lead to problems, particularly for employers where an employee’s right to freedom of speech comes up against the need to protect an employer’s online reputation. In this briefing, Kiri Thompson, HR and employment law specialist at rradar, explores the issues.

The issue is made more complicated where an employee’s statements on social media can be considered expressions of a religious or philosophical belief. Discrimination against someone based on such a belief is covered under Section 10 of the Equality Act 2010 and there have been several cases recently where people have successfully claimed they were discriminated against on the grounds of belief.

It’s a fine line to tread and one that is all too easy to cross; the consequences can be significant for both employer and employee, even if there are social media policies in place that are intended to protect both parties from straying into uncharted territory. The ultimate destination for clashes of opinion is the Employment Tribunal and, more often, we are seeing cases coming up that set out and define how employers should approach this thorniest of subjects.

One such case is that of *Rev. K Walters v. The Active Learning Trust Ltd and H Davies (2019).

What happened?
Keith Waters was a caretaker at Isle of Ely Primary School, and was also an ordained Christian minister, holding strong views based on his faith. In June 2019, he posted on his personal Twitter account a tweet which read:

“A reminder that Christians should not support or attend the LGBTQ ‘pride month’ events in June. They promote a culture and encourage activities that are contrary to Christian faith and morals. They are especially harmful for children.”

This referred to the first ever ‘Pride’ event that was due to take place in Cambridge later that month. Both Mr Waters and his church fundamentally disagreed with the Pride movement “and everything it stands for”. The tweet was picked up and disseminated by local newspapers. Those news articles were posted to an unofficial parents’ Facebook group.

Following this, the school received three complaints in writing, one of which contained emotive language and was headed “Formal Complaint”. The school considered that under its policies, it had to investigate that complaint. They wrote to Mr Waters, informing him that he was going to be investigated for allegations of misconduct, which – in their words – related to “recent reports of comments you have made in the public domain concerning the status and sexual identity of members of the local community”.

It was decided not to suspend him but to remove him from some of his parent-facing duties. During the investigation meeting, he accepted that his tweets could have an effect on the school. He did, however, not accept that his personal opinions would reflect those of the school or could be seen to be so.

The school’s policies
Section 6.3 of the social media policy reads:

"Employees must not damage the school’s reputation on social media at work or within their own time. This includes on their own or school owned technology, by criticising or insulting students, staff, parents, relevant third parties, figures in the community or the site. Employees must not post content or opinions deemed racist, sexist, homophobic or hateful.”

Section 6.5
Social networking outside of hours in a non-school setting is the personal choice of all school staff. Owing to the public nature of such websites, it is advisable for staff to consider the possible implications of participation.

Section 10.2
Breaches of this policy may constitute gross misconduct and as such may lead to staff dismissal."

As a result of the investigation, the school said that there was a case to answer. Mr Waters was invited to attend a disciplinary hearing to discuss the same allegations that were set out in the investigation invitation. The day after he received the invitation letter, Mr Waters told the head teacher that he was finding his position untenable and that he would not be attending the school until the matter had been concluded. Mr Waters did not carry out any further duties for the school. This was his last day in work and he resigned six days later. In his letter of resignation, he said:

“I was employed… in the full knowledge that I am an Ordained Christian Minister and…will publicly preach on, teach and expound biblical truth and ethics by way of any medium open to me; I did this prior to my appointment and have continued to do so to date. You can therefore appreciate my alarm at your suggestion that this is suddenly unacceptable, and in your estimation may bring the school into disrepute. It has become absolutely clear to me that… the Active Learning Trust (ALT) 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 meeting went ahead just under a month later and its outcome was that he was given a final written warning to stay on his employee record for 12 months. Mr Waters appealed but his appeal was dismissed. He submitted a claim to the Employment Tribunal, claiming unfair dismissal and direct and indirect discrimination.

At the Tribunal hearing
The Tribunal examined Mr Waters’ beliefs and subjected them to the Grainger test:

1. The belief must be genuinely held.
2. It must be a belief, not an opinion or viewpoint based on the present state of information available.
3. It must be a belief as to a weighty and substantial aspect of human life and behaviour.
4. It must attain a certain level of cogency, seriousness, cohesion and importance.
5. It must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.

It found that they passed these five stages; the final stage being more clearly defined in the recent case of Forstater v. Centre for Global Development Europe (2021).

They did note that Mr Waters’ view on Pride events was not exclusive to his religion, stating:

“It is one that many parents of young children irrespective of religion or belief may share as the respondent’s own witnesses acknowledged. There are some who do not agree with Pride or would not go to the events as they feel it is not appropriate; even members of the communities that the event seeks to promote may take this view. These views could be said to be a religion-neutral belief.”

Mr Waters’ claim for unfair dismissal failed; the Tribunal explained:

“Had the claimant resigned when the final written warning was imposed, the claimant may have had a case for constructive dismissal if it was found that the imposition of the final written warning was either discriminatory directly or indirectly. In this case the claimant jumped too soon. He had resigned when the decision was taken to proceed to the disciplinary situation and therefore nothing that occurred after this time is relevant to the reasons why the claimant resigned and whether the claimant can establish that the respondent breached the implied term of trust and confidence.”

His claim for direct discrimination also failed. The Tribunal said that:

“…the claimant’s claims for direct discrimination failed as it was not because of the religion or belief but the universal application of the policy to all and that those that wrote a similar post for non-religious reasons would be subject to the same treatment.”

However, his claim for indirect discrimination succeeded. (Indirect discrimination is when the employer applies a policy or criteria to everyone but it disadvantages one of the protected groups and the individual making the claim.) The Tribunal looked at whether the Trust had applied the following Provisions, Criteria or Practices (PCP) towards Mr Waters:

• The interpretation of the Trust’s social media and e-safety acceptable use policy, code of conduct for adults and/or equal opportunities policy, whereby a polite criticism of a “Pride” event by an employee, made in a context unrelated to the school is seen as “homophobic, harassing or in any other way discriminatory or offensive” and damaging the reputation of the school/Trust.
• The practice of giving substantial weight, in a disciplinary investigation of a social media post by an employee, to the strong views expressed by third parties (in the media and/or in complaints to the first respondent) rather than a strictly objective assessment of the employee’s conduct.

The Tribunal said that the Trust applied those specific policies to Mr Waters and concluded that the policies had been breached. The issue before the Tribunal was how they were interpreted and the balance between Mr Waters’ Article 9 rights in particular (Article 10 also being relevant) and those of the school and third parties. Articles 9 and 10 in this case refer to the Human Rights Act 1998 and the European Convention on Human Rights. The Tribunal also examined whether the Trust would apply those PCPs to those who did not share Mr Waters’ religion and/or beliefs and whether these PCPS would put persons with whom Mr Waters shared the protected characteristic at a particular disadvantage compared to others. After examining the arguments, it concluded that:

“The policy… would apply to all but others would be disadvantaged by the PCP in the same way as the claimant if they hold the same beliefs as the claimant and then preach those beliefs and that resulted in a complaint to the School. The claimant asserts that the disadvantage was that he (and others sharing his religious beliefs) were at a greater risk of receiving a disciplinary sanction for expressing their beliefs or opinions on social media.”

Finally, the Tribunal looked at whether the Trust could show that the PCP was a proportionate means of achieving a legitimate aim. They concluded that it was; additionally, it was a proportionate response to have policies prohibiting behaviour that could cause offence even if that was expression of a strongly held religious belief.

However, they said that giving Mr Waters a final written warning for his tweet in this context was not a proportionate means of achieving the legitimate aims. It did not protect the school as it would have been confidential and not in the public domain. So as far as parents were concerned, Mr Waters would still have been employed (if he had not resigned). There were other lesser options open to the school such as issuing a statement at an early stage to say that as a non-religious school, Mr Waters was entitled to have those views and practise his religion but that those views were not the views of the school and they took equal opportunities seriously. The Tribunal therefore found that Mr Waters had been subject to indirect discrimination.

What should employers bear in mind?
This case is an interesting one and adds another facet to the fascinating area of personal opinion and freedom of speech. The Tribunal made some trenchant points about the fact that Mr Waters had tweeted on his personal account:

“… 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. Of course, the distinction is not always clear cut and there are instances where conduct out of work can affect work. The school had complaints it needed to investigate. However, the balance favours the claimant’s Article 9 rights in these circumstances when done outside of employment in his religious role.”

They went on:

“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. Had the claimant expressed a strong view for example that directly criticised members of the gay community, for example 'homosexual couples should not have children as they harm them' it is easier to see that this is homophobic and a belief not capable of a place in modern society. In those circumstances intervention may be warranted.”