In the recent case of Wasteney v East London NHS Foundation Trust the Employment Appeal Tribunal (EAT) considered when it is appropriate to discipline someone for speaking about their religion at work. In this article we look at what the case means for employers and why, even though the claimant lost her appeal, the case could make it easier for some employees to claim religious discrimination.

Mrs Wasteney brought a claim of religious discrimination and harassment after she was disciplined when a more junior worker complained that she felt Mrs Wasteney had tried to impose her religious views on her. The junior worker, who was a Muslim, had characterised Mrs Wasteney’s actions as ‘grooming’. In particular, she described Mrs Wasteney, who was Head of Forensic Occupational Therapy, inviting her to church services, praying with her, laying hands on her and giving her a book concerning the conversion to Christianity of a Muslim woman.

Last year an Employment Tribunal rejected Mrs Wasteney’s claims. That decision has now been upheld by the EAT.

In rejecting the appeal, the EAT drew a distinction between cases where disciplinary action is taken simply because the employee has manifested their religion or belief – which would be unlawful - and those where action is taken because of the inappropriate way in which someone manifests their faith – which would not. The reason Mrs Wasteney’s case failed was because she was found to have overstepped the mark in the way she shared her faith with a more junior colleague: managers believed she had subjected a subordinate to unwanted and unwelcome conduct, going substantially beyond ‘religious discussion’, without regard to her own influential position. The disciplinary action was because of those inappropriate actions, not any legitimate manifestation of her belief, and so was neither direct religious discrimination nor harassment related to religion.

Although Mrs Wasteney lost her case, the EAT’s decision could make it easier in the future for some workers to claim discrimination where they have been treated unfavourably for speaking out about their religion at work. There are two reasons for this. Firstly, the case makes it clear that treating someone less favourably because they have manifested their beliefs can be direct discrimination where the employee has not acted inappropriately. Previous cases have not always made this clear and some earlier decisions could be read as suggesting that treating someone detrimentally because they have acted in a particular way, motivated by their religious beliefs, would not be direct discrimination. Secondly, the EAT stressed that in deciding what is ‘inappropriate’, it is important to bear in mind employees’ rights under the Human Rights Act 1998, which include freedom of thought, conscience, religion and expression.

Mrs Wasteney has asked for permission to take her case to the Court of Appeal. In the meantime, employers are left with difficult questions about when they can and should restrict what people can say in the workplace. The question of when an employee can be said to have acted inappropriately in the way they manifested their beliefs remains a grey area. One the one hand, employers are entitled to take proportionate action to protect staff from bullying and harassment, for example, or to prevent disruptive behaviour and protect their reputation. On the other hand, the need to respect freedom of belief and expression suggests that employers must also be alert to over-sensitivity and over-reaction, an issue that the Court of Appeal might say more about if the appeal is allowed to go forward. It is also important to bear in mind that the Human Rights Act protects unpopular and unpalatable beliefs and opinions as well as mainstream ones.

An example of an employer getting it wrong can be found in the case of Mbuyi v Newpark Childcare (Shepherds Bush) Ltd (4 June 2015; case no.330656/14). There, a claim of religious discrimination was upheld when the claimant was dismissed for explaining her understanding of the biblical teachings on homosexuality, including reference to it being a sin. In that case a colleague, who was a lesbian, had asked the claimant whether she would be welcome in the claimant's church and what God thought about her lifestyle but then became upset by the claimant's response.

That case demonstrates that taking disciplinary action simply because a colleague dislikes or is upset by what an employee has said can be problematic. In summary, managers should avoid knee-jerk reactions when dealing with religious expression in the workplace.

Wasteney v East London NHS Foundation Trust, 7 April 2006

An abridged version of this article was first published in HR Magazine.