“What the Court clearly failed to do was to say how, in today’s politically correct world, any Christian can even enter a conversation with a fellow employee on the subject of religion and not potentially later end up in an Employment Tribunal”.

These are words of Victoria Wasteney on BBC News Online last week following the Employment Appeal Tribunal’s dismissal of her religious discrimination claim. They are also words with which you could have some sympathy, at least upto the point where you read the EAT’s Decision.

Ms Wasteney worked for the East London NHS Foundation Trust as line superior to, among others, a Pakistani Muslim woman referred to in the Judgment only as EN. In June 2013, EN lodged a complaint that even knowing full well that she was Muslim, Ms Wasteney had tried to impose her evangelical Christian views upon her, invited her to Christian services, sent her tickets to Christian events, sought to pray with her and on one occasion, laid hands on her while encouraging her to “ask Jesus to come into you“. EN said that at one point she had told Ms Wasteney that she suffered from Crohns Disease and that she had not been remotely reassured by the response that the disease “did not exist because it was not in the Bible” and that “only Jesus could heal her“. EN also contended that Ms Wasteney had told her to “invite Jesus to come into her spirit” and to say out loud “I believe you are the son of God, Jesus; I believe in you and your power; come into me and heal me“. As what might be the crowning insensitivity, Ms Wasteney had then given EN a book about a Pakistani Muslim woman who had converted to Christianity.

As a result of EN’s complaint, Ms Wasteney was suspended and given a final warning, reduced on appeal to a first written warning. She claimed this to be discrimination by the Trust on grounds of her faith, and as part of that claim, that the Trust’s penalising her was a breach of her right under Article 9 of the European Convention on Human Rights to manifest her religious beliefs in the workplace. She relied in part on a 1994 ECHR case Kokkinakis ‑v- Greece, an exceptionally iffy decision seeming to legitimise within that manifestation attempts to proselytise and to try to change the religion of others.

In reality the Article 9(1) right to manifest one’s belief in the workplace is strictly subject to Article 9(2), i.e. that process not infringing on the right and freedoms of others. As a result, and seeing the facts as somewhat more than “entering a conversation”, Ms Wasteney’s claim was given very short shrift by both the Employment Tribunal and the EAT. Both relied in part on the fact that Ms Wasteney had been spoken to informally but unmistakably scarcely a year earlier about the need for more distinct boundaries between her spiritual and professional lives. More to the point, her treatment of EN had amounted, as she had admitted to the Employment Tribunal (though clearly not the BBC) to “subjecting a subordinate to unwanted and unwelcome conduct going substantially beyond religious discussion without regard to her own senior position“.

A more than sensible decision on the facts, therefore, but it leaves Ms Wasteney’s opening question unopened. The ET and EAT didn’t answer it because on the facts it was not asked of them, but we can still have a go at doing so here:

Lessons for Employers and Ardently Religious Employees:

  • Think of how these facts would sound if this were a sexual harassment claim (“Go on, you know you want to. It’ll be good for you. Here’s a copy of Fifty Shades and some tickets to a strip show“), in relation to which English law is substantially identical. Would you seriously say that a first written warning would be excessive in those circumstances?
  • Remember that a finding of harassment by a Tribunal needs only conduct with the purpose or effect of causing upset. Lack of intention (or indeed an active wish to do the right thing, as the Tribunal found here) forms no defence if the upset is caused anyway.
  • If you seek to persuade someone who is clearly of one religious persuasion (or sexual preference, etc.) towards another, then you clearly do so at your own risk. Doing your God’s work, however much of an imperative you may feel that to be, will cut no ice in the Employment Tribunal if it impinges on the rights and freedoms of others.
  • There is no need for the “victim” to show immediate upset or distress (on one occasion EN said that she had run to the Ladies to hide her distress, but had been followed in by Ms Wasteney). There is nothing inconsistent in the victim being externally civil while distressed within, especially as a junior employee who may feel hierarchically or culturally reluctant to complain.
  • BUT remember that the harassment rules include a defence for both employer and alleged harasser, even where upset is actually caused. Under Section 20 Equality Act, where it is unreasonable for the conduct complained of to have that effect, liability for harassment may be escaped. If Ms Wasteney had just “entered a conversation about religion”, found her views unwelcome (or at least not positively encouraged) and backed out again, it would have been hard for the Trust to impose any sanction. Unfortunately, that proved beyond her, and that is why things went wrong. It is also tempting to suggest that the reason why Ms Wasteney “ended up in the Employment Tribunal” is because she herself brought the Employment Tribunal claim, but never mind.