The Employment Appeal Tribunal (“EAT”) has dismissed the appeal of a senior manager, who brought a claim for discrimination and harassment on the basis of her Christian faith (Wasteney v East London NHS Foundation Trust UKEAT/0157/15/LA). The claim related to disciplinary action taken by her employer, the East London NHS Foundation Trust (“Trust”), which had received complaints from a junior member of staff who claimed to have been subject to religious ‘grooming’. 

Facts

Ms Wasteney worked as Head of Forensic Occupational Therapy at a mental health services facility run by the Trust. Complaints were made by a junior employee of Muslim faith that Ms Wasteney had subjected her to conduct characterised as ‘grooming’. Following investigation by the Trust, specific allegations were upheld, including: the gift of a book promoting conversion to Christianity; praying for and the laying of hands on the junior employee; and several invitations to events at an evangelical church.

Ms Wasteney was given a final written warning, reduced to a first written warning on appeal. She brought a claim to the Employment Tribunal (“ET”) for harassment and direct discrimination, which was dismissed. Her subsequent appeal to the EAT was also unsuccessful.

The EAT highlighted that the appeal was based on a version of events in which Ms Wasteney’s conduct was consensual. This factual basis had already been rejected by the ET. Critically, the ET heard evidence that the laying of hands on a junior employee was admitted as being inappropriate by Ms Wasteney. Further evidence accepted by the Trust’s disciplinary investigation and the ET was not consistent with the characterisation of two consenting colleagues sharing ideas around faith. The reason for disciplinary action could not therefore be attributed to mere religious discussion. Disciplinary action had been taken because a junior employee was subjected to improper conduct and the blurring of professional boundaries.

It is noted that the ET case of Mbuyi v Newpark Childcare (Shepherds Bush) Ltd ET/3300656/14 has some similarities. In Mbuyi, a Christian nursery employee was directly and indirectly discriminated against on the grounds of her religion or belief when she was dismissed for discriminatory conduct towards a lesbian colleague. Such conduct included giving her colleague a Christian book and expressing negative comments about homosexuality.

However this case can be distinguished from Wasteney on the facts. Significantly, some of the negative comments made in Mbuyi were in response to probing questions initiated by the colleague and therefore the colleague could also have been considered responsible for taking the conversation into an inappropriate arena. Further the disciplinary action in Mbuyi was held to be on the basis of ‘stereotypical assumptions about evangelical Christians’ made by the employer rather than her conduct. 

Practical considerations

The key takeaways are:

  • Managers should be aware of their position of authority in the workplace, particularly when discussing potentially sensitive subjects such as religion. Wasteney is an extreme example demonstrating conversations between managers and juniors can be perceived very differently.
  • Care should be taken by employers to assess who initiated any discussions and whether sensitive conversations were consensual as this will influence whether there is a finding of harassment.
  • A formal warning is unlikely to be deemed ‘oppressive’, as alleged in Wasteney, following thorough investigation and a finding of serious misconduct.
  • Employers should carefully consider the most appropriate policy to follow, and the precise wording of the chosen policy. In Wasteney, it was claimed that the Trust’s decision to follow the disciplinary rather than the mediation policy was discriminatory. The ET looked to the exact wording of the relevant policy to dismiss this complaint.