Is it direct discrimination to discipline an employee for expressing their religious views to a colleague?
In a recent case decided by the Employment Appeal Tribunal the rights of an employee to express their religious beliefs to a colleague who had not welcomed or requested such views was considered.
The Equality Act 2010 provides various protection for employees from discrimination, including direct discrimination and harassment because of religion or belief.
Section 13 of the Equality Act 2010 states:
A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.
Section 26 of the Equality Act 2010 states:
A person (A) harasses another (B) if—
(a) A engages in unwanted conduct related to a relevant protected characteristic, and
(b) the conduct has the purpose or effect of—
(i) violating B’s dignity, or
(ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
In deciding whether conduct has the effect referred to, each of the following must be taken into account—
(a) the perception of B;
(b) the other circumstances of the case;
(c)whether it is reasonable for the conduct to have that effect.
(5)The relevant protected characteristics are—
religion or belief;
Miss Wasteney was employed by East London NHS Foundation Trust (the ‘Employer’) from the 5th March 2007 as Head of Forensic Occupational Therapy at the Employer’s mental health facility, which provided secure accommodation to patients who had been admitted under the Mental Health Act.
Miss Wasteney was a born-again Christian and in 2011 she started an initiative for members of her church to provide religious services at the facility where she worked. The Employer was initially receptive to this initiative, however because of concerns about improper pressure placed on service users and staff it was suspended and in March 2012 Miss Wasteney’s manager spoke to her about the need for boundaries between her professional and spiritual life.
In June 2013 a junior colleague of Miss Wasteney made a complaint to the Employer alleging that Miss Wasteney had tried to impose her religious views on her. The colleague was of Muslim faith and had been invited by Miss Wasteney to services at her church and, amongst other things, to pray with her.
The complaint was set out in an 8 page statement which alleged that Miss Wasteney had been ‘grooming’ her, had abused her management position and had made the colleague ill as a result.
The Employer undertook an investigation into the complaints and the matter proceeded to a disciplinary hearing.
At the disciplinary hearing the Employer decided that of the allegations made, three were upheld against Miss Wasteney, namely;
1) that she had given her colleague a book promoting conversion to Christianity;
2) that she had prayed for the colleague during a 1:1 meeting and had laid hands on her;
3) that she had, on several occasions, invited the colleague to attend church functions.
Miss Wasteney was given a final written warning for her behaviour, which she appealed. On appeal the Employer downgraded the sanction to a written warning.
Miss Wasteney made a claim in the Employment Tribunal for discrimination and harassment. Her claims were not successful and she appealed to the Employment Appeal Tribunal.
At the appeal Miss Wasteney’s claims for Direct Discrimination and Harassment were considered and it was concluded that the Employment Tribunal had been correct in their assessment of the claims and therefore her appeal was unsuccessful.
The reason for this was because the Employer had disciplined Miss Wasteney because of her inappropriate actions rather than her religion and beliefs. She had been subjecting her colleague to unwelcome and unwanted conduct which went beyond religious discussions. Rather than a legitimate manifestation of her beliefs her actions had been unwanted and non-consensual.
Therefore the disciplinary action was not because of a protected characteristic rather it was because her behaviour was inappropriate.
Points to Note
In the course of her appeal Miss Wasterney also argued that there had been a breach of her rights under the European Convention on Human Rights (freedom of thought, conscience and religion).
The conclusion of this was that the European Human Rights did not give a “complete and unfettered right to discuss or act on her religious beliefs at work irrespective of the views of others or her employer”.
Action to Take
- Ensure that you have an equality and diversity policy in place.
- Consider training staff on equality and diversity.
- If you receive complaints of inappropriate behaviour based on any of the protected characteristics seek advice before taking action, but do not delay.
Wasteney v East London NHS Foundation Trust – Employment Appeal Tribunal