We look at the recent EAT decision that an NHS Trust had not discriminated against a Christian employee when it disciplined her for discussing her faith with a Muslim colleague.
The case of Wasteney v East London NHS Foundation Trust has had a great deal of coverage in the press and has brought to the fore once again the question of religious discrimination in the workplace. Whilst the topic is not new, does this latest case have any lessons for employers on how to handle this very sensitive issue?
Facts of the case
Ms Wasteney was Head of Forensic Occupational Therapy at a mental health hospital when she was suspended and given a final written warning for serious misconduct. This was based on a complaint by a Muslim colleague, Miss Nawaz, that Ms Wasteney had regularly discussed matters of faith with her, given her a book about a woman converting to Christianity, prayed with her, and invited Miss Nawaz to several events at her church. Ms Wasteney appealed against the final written warning, and although the finding of misconduct was not changed, the sanction was reduced to a first written warning with a recommendation for training. Ms Wasteney was subsequently moved to another role when she found it difficult to resume her duties following the episode.
Ms Wasteney presented a claim in the Employment Tribunal (ET) that she had been discriminated against and subjected to harassment because of her religion or belief. She pursued her claim under the Equality Act 2010 but in accordance with the Human Rights Act 1998, the ET was obliged, so far as possible, to interpret the Equality Act compatibly with the European Convention on Human Rights (ECHR). Ms Wasteney claimed that the disciplinary process and imposition of a warning was a breach of her right under Article 9 of the ECHR to manifest her religious belief.
Her claim was dismissed by the ET and she appealed to the Employment Appeal Tribunal (EAT). As has been well publicised, the EAT also rejected Ms Wasteney’s appeal.
What lessons are there for employers?
Depending on one’s perspective, the case has been held up either as demonstrating that Christians are subjected to more ‘politically correct’ restrictions when it comes to discussing their faith than colleagues of other religions, or as correctly categorising Ms Wasteney’s actions as ‘harassing’ a colleague of a different faith.
However, press reports have tended to omit or gloss over several important points, which employers would do well to bear in mind when drawing lessons from the case:
- Ms Wasteney was in a position of considerable authority over Miss Nawaz. She was the head of the department whereas Miss Nawaz was an occupational therapist in the first 12 months of her career after training. It was this that played a considerable part in the conclusions of the disciplinary panel. The panel stated that “given the seniority of your role, staff may find it difficult to refuse your invitations and discussions regarding your personal beliefs” and advised that professional boundaries should be maintained.
- The panel took into account that Ms Wasteney had previously been asked (in a different context) to refrain from blurring the boundaries between her spiritual and professional life.
- The EAT accepted the ET’s distinction between “having a discussion about faith” and “subjecting a subordinate to unwanted conduct which went substantially beyond a ‘religious discussion'”, where Ms Wasteney had not had regard to her influential position and the previous instructions to the contrary.
- Crucial to this was the ET’s finding that, contrary to Ms Wasteney’s view, the discussions were not exchanges with a consenting colleague, but were in fact unwanted and unwelcome conduct. One might have a little sympathy for Ms Wasteney who said she was completely unaware, until the complaint was made, that Miss Nawaz found her actions distressing. In response to one invitation to attend a church event, Miss Nawaz wrote “I’m going home on Friday but hoping to be back for this”, a reply which doesn’t imply it was a completely unwanted invitation. Although the events were not characterised as such by the disciplinary panel, this does reflect the test for harassment, where the effect of the unwanted conduct is viewed from the perspective of the victim. The question is whether the unwanted conduct has the effect in the victim’s view of creating, for example, an offensive environment, and also whether it is reasonable, viewed objectively, for the conduct to have that effect.
- The EAT accepted that the ECHR protects not merely the right to hold a belief but the right to manifest that belief (including even attempting to convince others of the tenets of the belief). It noted that “without the right to express and practise beliefs, the freedom of religion guaranteed by Article 9 would be rendered hollow“. However, Article 9 is a ‘qualified’ right, subject to such limitations as are necessary for the protections of the rights and freedoms of others. This means that the right may be limited where a person manifests the belief inappropriately, and that applied in this case.
So, how far can or should a “religious discussion” in the workplace be permitted to go? There is clearly a fine line for employers, but it should not be assumed from this case that it is appropriate to take disciplinary action against a Christian or person of any other faith who openly discusses their faith in the workplace.
The question will be whether the employee is ‘inappropriately’ manifesting their belief. This is not always easy to discern. In Mbyui v Newpark Childcare (Shepherd’s Bush) Ltd the employer was found to have discriminated against a Christian worker when, without a previous warning, it dismissed her for giving her views on homosexuality when she was asked to do so by a lesbian colleague (although that case also involved a number of procedural failings by the employer). By contrast, Ms Wasteney was found to have placed improper pressure on a subordinate by promoting her religious belief in a way that was not consensual.