Indirect discrimination on the grounds of religious belief

Can the issuing of a final written warning amount to indirect discrimination on the ground of religious belief? The case of Rev. Keith Walters v The Active Learning Trust Ltd and Davies highlights that a written warning can amount to indirect discrimination if it was not a proportionate means of achieving a legitimate aim, despite the school relying on damage to reputation.

Religious belief

The claimant was a Christian minister of the New Connexions Free Church throughout his employment with the school as a caretaker. The claimant described himself as an orthodox Christian, believing in the truth of the Bible which he accepted as the primary source of authority on all matters of faith and morals. The school was a non-faith school and had no religious affiliation.

In advance of pride month, the claimant posted the following on his twitter account which he maintained in his capacity as a Christian pastor:

‘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.’

Formal complaint

The tweet attracted a lot of attention from local and social media and the claimant suffered from abuse and hate mail as it was felt his comments were homophobic. The news articles were posted on a facebook group containing parents of the school. The school received three complaints in writing, one of which was headed formal complaint expressing concern that a member of the school staff held such views.

Disciplinary investigation

The school wrote to the claimant by letter dated 4 June 2019, informing him that he was to be investigated for allegations of misconduct/gross misconduct, namely making and the circulation of comments which could be harmful to the reputation of the school. Following a risk assessment, the claimant was removed from some parent facing duties. The investigation concluded that there was a case to answer.

Final written warning

The claimant was invited to a disciplinary hearing on 25 June 2019. On 18 June, the claimant told the headteacher that he was finding his position untenable and would not be attending the school until the matter had been concluded. On 24 June 2019, he resigned with one months’ notice. The disciplinary hearing was rearranged and took place on 19 July 2019, the outcome of which was a final written warning to last for 12 months. Given the claimant had already resigned he did not return to work. He appealed the decision of the disciplinary hearing by letter dated 29 July 2019, stating that he did not intend, nor did he act in a homophobic manner. An appeal hearing was arranged for 23 September 2019 and his appeal was dismissed.

Employment tribunal (ET) claim

The claimant brought claims of constructive unfair dismissal and indirect and direct discrimination relying on the characteristic of his religion and/or beliefs.

Treated less favourably

The first issue to be considered was whether because of the claimant’s religion and belief he was treated less favourably. The ET found that the claimant had not been treated less favourably. A failure to investigate the complaint would have been seen as a failure on behalf of the school. The outcome of the disciplinary hearing was within the range of reasonable responses. Further, the instigation of the investigation, the outcome of the investigation or removing him from his duties did not amount to breach of an implied term of trust and confidence entitling the claimant to resign.

Indirect discrimination

In relation to the claim of indirect discrimination, the school argued that investigating the complaint was a proportionate means of achieving a legitimate aim. This was agreed by the ET as the school needed to preserve its reputation. However, the ET did not accept that giving the claimant a final written warning for his tweet was a proportionate means of achieving the legitimate aims because it did not protect the school as it would have been confidential and not in the public domain. Lesser options were available, such as the school issuing a statement at an earlier stage to say that the claimant was entitled to his views but they were not the views of the school. This may have prevented the complaints and the disciplinary action that followed. The complaint of indirect discrimination in relation to the issuing of a final written warning was therefore upheld. However, as this post-dated the claimant’s resignation it could not have been the reason why he resigned. The claim of constructive unfair dismissal was dismissed.

The matter has been referred to a remedy hearing.

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