Drew v Walsall Healthcare NHS Trust

In a direct religion-or-belief discrimination claim, the hypothetical comparator must share the claimant’s relevant circumstances apart from the protected characteristic. Where the complaint concerns workplace communications, the comparator may be a person of another faith or no faith who uses comparable references drawn from that person’s own belief system. The tribunal need not construct an unrealistic comparator who uses beliefs that are not their own.

Unreasonableness does not itself establish direct discrimination. The decisive question is why the claimant was treated as they were and whether the proper comparator would have received different treatment. Findings of fact may be overturned for perversity only where no reasonable tribunal could have reached them.

Dr Drew, a consultant paediatrician and practising Christian, was dismissed after refusing without qualification to accept recommendations made following an independent review of serious workplace difficulties in a multicultural and multi-faith department. One recommendation required him to refrain from religious references in professional communications. He also distributed confidential material contrary to instructions.

The Employment Tribunal at Birmingham dismissed his claims for direct religion-or-belief discrimination, victimisation and unfair dismissal. Dr Drew appealed, principally challenging the treatment of the recommendations, the selection of a hypothetical comparator, the fairness of the independent review, and the reasonableness of the instruction and dismissal.

The central issue was whether the Tribunal had erred in law, or reached perverse findings, in concluding that the actions taken were not because of Dr Drew’s Christian belief and that dismissal was fair.

1. Appeal dismissed. The Employment Tribunal made no error of law in rejecting the claims of direct discrimination, victimisation and unfair dismissal.
2. The Tribunal correctly applied the guidance in London Borough of Islington v Ladele [2009] IRLR 154. The proper hypothetical comparator was a consultant paediatrician in the same material circumstances who used workplace references based on that person’s own religious or non-religious belief system. It was not necessary, or realistic, to posit a person using Christian references in which they did not believe.
3. The evidence entitled the Tribunal to find that the recommendations concerning religious references were made because colleagues regarded Dr Drew’s communication style as inappropriate and disruptive, not because he was Christian. A comparable employee of another faith or no faith would have been treated in the same way. The recommendation did not prohibit ordinary expressions merely because they had a religious origin; it addressed religious references in professional communications.
4. The independent review was not a disciplinary process. It was open to the Tribunal to find that the genuinely independent panel had fairly conducted its wider investigation, including through non-attributable interviews. There was no basis for an inference of discrimination from its process or recommendations.
5. The Tribunal was entitled to find that the Trust’s requirement that all affected persons accept and implement the review recommendations was lawful and reasonable. Dr Drew’s continued refusal, together with his breach of confidentiality, entitled the dismissing panel to regard dismissal as fair. Whether a decision is unreasonable is distinct from whether it is directly discriminatory.
6. The challenges to the evidence were, in substance, perversity challenges. They failed because the findings attacked were plainly open to the Tribunal; an appellate court may interfere only where the factual conclusion is one no reasonable tribunal could reach.

• Employment Appeal Tribunal: Appeal dismissed; the Employment Tribunal’s dismissal of the direct discrimination, victimisation and unfair dismissal claims was upheld.
• Employment Tribunal sitting at Birmingham: Following an eight-day hearing, it dismissed the claims in a reserved judgment sent to the parties on 13 April 2012.