Labour & European Law Review Weekly Issue 470 18 May 2016
Under the Equality Act 2010, it is unlawful for employers to discriminate against workers because of their religion or belief. In Wasteney v East London NHS Foundation Trust, however, the Employment Appeal Tribunal (EAT) upheld the tribunal decision that the Trust had not discriminated against Ms Wasteney because of her religion and belief but because she had blurred the boundaries between her spiritual and professional lives.
Ms Wasteney, a born-again Christian, started work for the Trust in 2007 as Head of Forensic Occupational Therapy at a mental health services facility. In 2011 she launched an initiative to provide religious services at the facility using volunteers from her church. Although the Trust was initially receptive to the idea, it suspended the services after allegations of improper pressure on staff and patients. Ms Wasteney was informally warned by her manager in March 2012 of the need for boundaries between her spiritual and professional lives.
In June 2013 a newly qualified occupational therapist, known as EN (who was a practising Muslim) complained that Ms Wasteney was trying to impose her religious views on her, inviting her to services at her church, praying with her and, on one occasion, laying hands on her. EN detailed her complaints in an eight-page statement saying she felt “groomed”. After an investigation, Ms Wasteney was given a final written warning which was downgraded on appeal to a first written warning with a recommendation of training.
Ms Wasteney claimed direct religious discrimination and harassment, arguing that the disciplinary sanction was “oppressive”, among other things.
Although the context in which the disciplinary process took place was to do with religious acts, the tribunal held that the reason for her treatment was because these acts blurred professional boundaries and placed improper pressure on a junior employee. It was satisfied that the Trust would have taken a similar approach had she been advocating a particular political point of view. It therefore rejected her allegations of direct discrimination and harassment.
It also rejected the complaint that the sanction imposed by the Trust was “oppressive”, holding that she had been accused of serious misconduct amounting to a misuse of power. Nor did it constitute unlawful treatment because of religion or belief.
Ms Wasteney appealed, arguing among other things that the tribunal had failed to protect her right under Article 9 of the European Convention on Human Rights to freedom of thought, conscience and religion.
The EAT dismissed her appeal because the facts on which it was based had been expressly rejected by the tribunal.
Although she argued that her interaction with EN was “consensual” and “voluntary”, the tribunal found that the Trust did not impose the warning “because of or for reasons related to her sharing of her faith with a consenting colleague”. Instead it imposed the warning because the colleague in question had made serious complaints about acts which blurred professional boundaries and placed improper pressure on her.
As for her rights under Article 9.1, the EAT held that the freedom to manifest one’s religion was not an unfettered right and was subject to the rights and freedoms of others.
The EAT identified that this was a case where the treatment of the employee was not because of the manifestation of the religion or belief per se but because of the inappropriate manner of the manifestation insofar as she had improperly imposed her religious beliefs on a junior member of staff.
An employee who has expressed or practised their religious beliefs in the workplace should not be subject to disciplinary action. However, if an employee expresses their religion inappropriately, this conduct may be subject to disciplinary action.