The Equality Act 2010 makes it unlawful to harass or discriminate against someone in the workplace because of their religion or belief. Employees should, therefore, be free to manifest their beliefs. But what happens when an employer receives a complaint from one employee about the way another employee is manifesting their faith in the workplace? Is it unlawful to discipline an employee on this basis?
In the case of Wasteney v East London NHS Foundation UKEAT/0157/15/LA, Ms Wasteney was employed as the Head of Forensic Occupational Therapy by East London NHS Foundation (the “Trust”). She described herself as a Christian and was responsible for managing a team of employees. One of her team members (“EN”) was of the Muslim faith and complained that Ms Wasteney had abused her managerial position by trying to impose her religious views on EN by:-
• inviting EN to services at Ms Wasteney’s church;
• praying with her;
• laying her hands on her;
• giving EN a book about an individual who had converted from the Muslim to the Christian faith.
EN said that she felt “groomed” by Ms Wasteney and had begun to feel ill as a result.
The Tribunal noted that this was EN’s first 12 month placement post training and was her first extended period away from home.
The Trust suspended Ms Wasteney to investigate the complaint and then invited her to a disciplinary hearing to consider eight alleged “acts of proselytising''. It found Ms Wasteney culpable of serious misconduct and issued her with a final written warning on the basis that she had blurred professional boundaries and subjected a junior colleague to improper pressure and unwanted conduct. Ms Wasteney appealed and the sanction was reduced to a first written warning but she then brought tribunal proceedings alleging that she had been discriminated against and/or harassed because of her religion or belief.
At first instance, the tribunal rejected the claims therefore Ms Wasteney appealed to the Employment Appeal Tribunal (“EAT”). The EAT concluded that Ms Wasteney had not been discriminated against on the grounds of her religion or belief. It found that the disciplinary action had been taken on account of Ms Wasteney “subject[ing] a subordinate to unwanted and unwelcome conduct, going substantially beyond ``religious discussion'', without regard to her own influential position” and not because she had “manifested her beliefs in voluntary and consensual exchanges with a colleague”, ie she had been disciplined because of her “inappropriate actions” and not because of any “legitimate manifestation of her belief”. It was not, therefore, discriminatory.
Employers and employees facing a similar situation will need to consider carefully where the distinction lies between an individual’s lawful entitlement to practice their belief and the impact that this may have on their colleagues. In this case, Ms Wasteney’s seniority was clearly an influencing factor but, as always, each case will turn on its own facts.
Adopting a Dignity at Work Policy and training managers and staff to deal with these situations before they arise is always a sensible step.
If you would like further information or training on this or any employment issue please contact Debbie Sadler at firstname.lastname@example.org or on 0118 955 9607.
Published on 08/06/2016