Believe it or not

Chondol v Liverpool City Council

Under the religion and belief regulations, employers cannot discriminate against workers for their religious beliefs. However, the Employment Appeal Tribunal (EAT) in Chondol v Liverpool City Council said that there was a difference between dismissing someone because of their religious beliefs and dismissing them for inappropriately foisting those beliefs on others.

Basic facts

Naphtali Chondol, a committed Christian, was employed by Liverpool City Council as a social worker but was seconded to Mersey Care NHS Trust as a member of the Community Mental Health Team. He was aware that the Council prohibited social workers from promoting any religious beliefs whilst at work.

He was dismissed on 24 May 2007 for gross misconduct, following concerns that he was inappropriately foisting his religious beliefs on service users and had breached the Council's lone working policy by taking a service user to his home without a risk assessment having been carried out.

The Council was also concerned that he had:

• Breached health and safety procedures and potentially placing people at risk
• Failed to follow correct procedures in relation to visiting service users outside of his normal working hours
• Failed to follow correct procedures in relation to the completion of incident reports

Mr Chondol claimed unlawful discrimination contrary to the Employment Equality (Religion or Belief) Regulations 2003, among other things.

Relevant law

Regulation 3(1)(a) of the religion or belief regulations states that:

“For the purposes of these Regulations, a person ("A") discriminates against another person ("B") if (a) on grounds of religion or belief, A treats B less favourably than he treats or would treat other persons…”

Reg. 3 (3) reads:

“A comparison of B's case with that of another person under paragraph (1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other”.

Tribunal decision

The tribunal accepted that Mr Chondol had been treated less favourably by the Trust but concluded that the reason for the treatment was not because he was a Christian, but because he had been improperly foisting his personal views on service users. It was satisfied that the Council would have acted in the same way regardless of what religion or strongly held belief was being promoted.

Mr Chondol appealed, arguing that the tribunal should have used a comparator with no belief or an unrelated different belief, not someone with a similarly protected belief who was “considered to be committing misconduct because of that belief”.

EAT decision

The EAT rejected the appeal and commented that rather than getting bogged down in a debate about “the correct characterisation of the comparator”, tribunals should focus “on the fundamental question of the reason why the claimant was treated in the manner complained of”, as the tribunal had done in this case.

It concluded that the distinction made by the tribunal between Mr Chondol’s religious belief on the one hand and “the inappropriate promotion of that belief” on the other was entirely valid, although tribunals had to be clear that it reflected the employer's true reason for dismissal.

The Council had not, therefore, discriminated against him as it would have treated "other persons" in the same circumstances in the same way.