In Wasteney v East London NHS Foundation Trust (UKEAT/0157/15/LA), the EAT had to decide whether taking disciplinary action against an employee for imposing her religious views on a junior colleague was unlawful religious discrimination.
Mrs Wasteney (W) started working for East London NHS Foundation Trust (the Trust) in 2007 as head of forensic occupational therapy at a mental health services facility. W described herself as a born-again Christian and attended the Christian Revival Church, an evangelical church.
In 2011, W launched an initiative whereby volunteers from the Christian Revival Church carried out religious services at the Trust's mental health services facility. The Trust was willing to establish regular Christian worship. However, concerns arose about the initiative, with allegations of improper pressure on staff and service users. The Trust suspended the religious services and W's manager informally warned W as to the need for boundaries between her spiritual and professional lives.
In June 2013, EN, who was of Pakistani heritage and Muslim faith, complained that W had tried to impose her religious views on her by inviting her to services at the Christian Revival Church, giving her a book about a Muslim Pakistani woman who had converted to Christianity and laying hands on her while praying. EN, who was more junior than W, complained that she felt "groomed" by W.
The Trust investigated EN's complaints and, at a disciplinary hearing, concluded that the allegations had been established. The disciplinary panel noted that W had no previous disciplinary warnings but had received clear guidance from her manager as to how to conduct herself. The disciplinary panel considered that W had failed to maintain appropriate professional boundaries and gave her a final written warning.
On appeal, the sanction was reduced to a first written warning with a recommendation of training. The appeal panel was sympathetic towards W, as it felt that the investigation had taken too long and it criticised the failure to redeploy her. The appeal panel believed, however, that it was correct for the disciplinary panel to uphold the allegations because W was a senior member of staff in a position of authority.
Employment tribunal decision
W brought claims in the employment tribunal (ET) for direct discrimination and harassment on the ground of religion and belief. The ET rejected her claims. It found that the reason for W's treatment was because her acts blurred professional boundaries and placed improper pressure on a junior employee. The ET believed that the Trust would have taken a similar approach had W been pressing a particular non-religious point of view. The ET did not accept W's argument that the disciplinary sanction was oppressive such as to amount to harassment.
W appealed to the EAT. She argued, among other things, that the ET had failed to take sufficient account of her right under Article 9 of the European Convention on Human Rights to manifest her religious belief.
The EAT dismissed W's appeal. It noted that the manifestation of religious beliefs on which W relied was "sharing her faith with a consenting colleague". However, the ET did not find that the Trust had pursued disciplinary action because W had shared her faith with a consenting colleague. The ET had expressly found that the reason for the disciplinary action was that EN had made serious complaints about acts that blurred professional boundaries and W had placed improper pressure on EN. The EAT found that this was a permissible basis for rejecting W's claim.
There is a fine line to note from this interesting case. The EAT concluded that W was not subjected to disciplinary process or sanction because she manifested her religious belief in voluntary and consensual exchanges with a colleague but because she had subjected a more junior member of staff to unwanted and unwelcome conduct, going well beyond "religious discussion". There is a distinction between an employer who disciplines an employee for simply manifesting a religious belief, which would be unlawful discrimination, and an employer who takes disciplinary action against an employee for improperly manifesting a religious belief, which an employer is entitled to do.