The Employment Appeal Tribunal has upheld a decision that disciplining an employee for promoting her religious beliefs at work was not discriminatory.
Employers are entitled to discipline employees for inappropriate manifestations of their religious beliefs at work. Here, a senior manager had placed improper pressure on a junior colleague to subscribe to certain religious beliefs. This amounted to inappropriate conduct justifying disciplinary action (Wasteney v East London NHS Foundation Trust, EAT).
Facts
The claimant was a born-again Christian working as a senior manager in the NHS. A junior colleague of Muslim faith complained that the claimant had attempted to recruit her to the Christian faith by way of variety of "grooming" activities. These included the claimant praying over her, laying hands on her, giving her a book about conversion to Christianity, and inviting her to various events at the evangelical church that the claimant attended. The junior colleague complained that the claimant's actions had negatively affected her health and had "completely ruined" her first year of practice.
The respondent employer conducted a disciplinary investigation. The claimant's position was that the conversations had been consensual and arose from the junior colleague's expressions of interest in Christianity. However, the employer decided that the claimant had subjected the junior colleague to improper pressure and unwanted conduct. The claimant was given a final written warning, which was reduced on appeal to a first written warning and a recommendation of training.
The claimant brought proceedings in the Employment Tribunal claiming that she had been subjected to direct and indirect discrimination and harassment on the grounds of religious belief. She also alleged that the respondent has infringed her right under Article 9 of the European Convention on Human Rights (the Convention) to manifest her religious belief by sharing her faith with a consenting colleague.
Employment Tribunal decision
In relation to the Article 9 argument, the Tribunal did not accept that the Convention gave the claimant a "complete and unfettered right" to discuss, or act on, her religious beliefs at work irrespective of the views of others, or her employer.
The Tribunal rejected the discrimination and harassment claims. It held that the context of the disciplinary process was the religious acts, but that the reason for the treatment was because these acts "blurred professional boundaries and placed improper pressure on a junior employee". The Tribunal was satisfied that the employer would have taken a similar approach had the Claimant been pressing a particular political point of view.
In particular, the Tribunal rejected the claim that it had been directly discriminatory to pursue a disciplinary process, rather than mediation under the respondent's Dignity at Work policy, noting that this would have only been appropriate in cases where there was an ongoing working relationship and both parties wished to resolve the issues. This was not the case here.
EAT decision
The claimant appealed on the basis that the Tribunal erred in viewing her religious belief as "context", as opposed to an exercise of her rights under Article 9 of the Convention to freely manifest her religious belief, subject to proportionate limitations. She also argued that the Tribunal erred by failing to properly scrutinise the proportionality of the respondent's decision to institute disciplinary proceedings, rather than the alternative of mediation.
The EAT dismissed the appeal. It noted that a fundamental premise of the appeal was that the manifestation of the belief relied on by the Claimant was sharing her faith with a consenting colleague. However, the junior colleague had not consented to the Claimant's actions. Instead, the disciplinary action had been pursued because the Claimant had, in fact, blurred professional boundaries and placed improper pressure on a junior colleague.
In other words, there was a distinction to be drawn between being disciplined for: (i) a legitimate manifestation of a religious belief at work; and (ii) an inappropriate manifestation of a religious belief at work. In the first instance, any disciplinary action may amount to unlawful religious discrimination. In the second instance, the reason for the disciplinary action would be the manner in which the employee had manifested their religious belief, rather than the religious belief itself, with the result that the disciplinary action would not be discriminatory.
Comment
This case highlights the importance of training employees on equal opportunities and harassment. Whilst discussing religious matters on a consensual basis is permissible, employees need to be aware that the repeated and/or forceful imposition of religious views on a colleague may amount to harassment of that colleague. Even if the intention behind the sharing of religious views is benevolent, the Equality Act 2010 provides that harassment can occur even where it is not intended.
Where an employer is considering disciplinary action for the inappropriate manifestation of religious beliefs at work, care needs to be identify exactly what it is that is considered "inappropriate" to avoid claims that the disciplinary action is discriminatory.
