Wasteney v East London NHS Foundation Trust

Disciplinary action concerning religious conduct is not discriminatory merely because the conduct formed part of the context. The critical question is why the employer acted. Where the employer acted because the employee subjected a subordinate to unwanted conduct, blurred professional boundaries, or exerted improper pressure, the treatment may be because of that inappropriate conduct rather than because of a legitimate manifestation of religious belief.

Article 9 protects manifestation of religion, including religious expression and practice, but that protection is qualified. In direct discrimination and harassment claims, the tribunal must identify whether the treatment was because of, or related to, the manifestation itself or instead to the inappropriate manner in which it was manifested. The tribunal must also determine the claim according to the case actually advanced.

The Claimant, a senior NHS occupational therapist and practising Christian, received a final written warning, reduced on appeal to a first written warning, after disciplinary findings concerning her interactions with a junior Muslim colleague. The upheld allegations involved giving a conversion-related book, praying with the colleague and laying hands on her, and repeated invitations to church events.

The Employment Tribunal dismissed claims of direct discrimination and harassment related to religion or belief. It found that the disciplinary action addressed unwanted conduct, blurred professional boundaries and improper pressure, rather than the Claimant’s religious belief. The Claimant appealed, arguing that the tribunal had failed to protect her Article 9 right to manifest religion and had failed to assess proportionality, including the use of mediation.

1. Appeal dismissed. The Employment Tribunal had reached permissible findings of fact and gave adequate reasons.
2. The Claimant’s case depended on characterising the interactions as voluntary and consensual sharing of faith. That characterisation was inconsistent with the tribunal’s findings. The colleague had complained of distress and unwanted conduct, and the Claimant had accepted that aspects of her conduct were inappropriate.
3. Article 9 protects the manifestation of religious belief, including the expression and practice of religion. The right is qualified under Article 9(2). In domestic proceedings, the tribunal must apply the relevant provisions of the Equality Act 2010 consistently with Convention rights, pursuant to section 3 of the Human Rights Act 1998.
4. For direct discrimination under section 13, the tribunal must identify the reason for the less favourable treatment. For harassment under section 26, it must identify what the conduct was related to. Those inquiries can distinguish treatment directed at religious manifestation from treatment directed at the inappropriate manner of that manifestation. Otherwise, disciplining harassment of a co-worker could itself be wrongly characterised as harassment related to religion.
5. The disciplinary action was taken because the Claimant had subjected a subordinate to unwanted and unwelcome conduct, substantially exceeding religious discussion, without regard to her influential position. It was not taken because she manifested her belief in voluntary and consensual exchanges.
6. The sanction was not oppressive in circumstances involving a finding of serious misconduct and misuse of power. The tribunal was also entitled to find that disciplinary proceedings, rather than mediation, were appropriate given the seriousness of the complaint, the colleague’s distress, her imminent departure and the absence of an ongoing working relationship.

• Employment Tribunal: dismissed the claims of direct discrimination and harassment because of or related to religion or belief. The decision was sent to the parties on 27 February 2015.
• Employment Appeal Tribunal: dismissed the appeal and upheld the tribunal’s reasoning and conclusions.