Wasteney v East London NHS Foundation Trust
Employment Appeal Tribunal case confirming that a Christian NHS Manager had not been subject to unlawful discrimination and harassment (on the grounds of her religion) by an employer who disciplined her for trying to impose religious views on a junior colleague.
The Claimant, who described herself as a "born again Christian", was employed as a senior manager by the Trust. A junior employee, who was a practising Muslim, had complained that she felt "groomed" as the Claimant sought to "impose…religious views" on her by inviting her to church services, praying over her, laying hands on her and presenting her with a book about a Muslim Pakistani woman who had converted to Christianity.
The Trust investigated the complaint, found the Claimant guilty of misconduct and gave her a final written warning (reduced to a first written warning on appeal). The ET dismissed the Claimant's allegation that this amounted to discrimination or harassment on the grounds of religion, stating that although "religious acts" provided the context to the disciplinary process, the Trust had initiated the procedure due to the blurring of professional boundaries and the placing of improper pressure on a junior employee rather than any legitimate manifestation of her belief. The Claimant appealed.
The EAT dismissed the appeal, stating that since the right to "manifest" one's religion under Article 9 ECHR was qualified, it was important to distinguish between cases in which the employer's action was because of the manifestation itself; and those in which it was because of the inappropriate manner of the manifestation. This case fell into the latter category.
The Trust did not take disciplinary action because the Claimant had manifested religious beliefs in the context of legitimate voluntary and consensual exchanges with a colleague; but rather because she subjected a subordinate to unwanted and unwelcome conduct, going substantially beyond 'religious discussion', without regard to her own influential position. As the Trust’s actions were due to the inappropriate nature of the Claimant’s conduct rather than the manifestation itself, they were not discriminatory.
This case demonstrates that employers can legitimately tackle religious manifestations in the workplace if the conduct causes distress to other staff members. However, care should be taken to ensure that any relevant policies are followed and that sanctions are both proportionate (i.e. not “oppressive”) and consistent with previous action.