Background

In our round-up on 12 April we mentioned the case of Victoria Wasteney, who worked for East London NHS Foundation Trust as Head of Forensic Occupational Therapy, mainly at the John Howard Centre – a secure mental health services facility for patients admitted under the Mental Health Act 1983. She had been given a final written warning by the Trust for three charges of misconduct – praying with EN, a Muslim colleague of Pakistani heritage, giving her a book about a Muslim woman who converts to Christianity, and inviting her to church events – though that had subsequently been reduced on appeal to a first written warning.

A transcript of the Employment Tribunal determination has now been posted on the National Secular Society’s website: Wasteney v East London NHS Foundation Trust [2015] ET 3200658/2014. Before the Tribunal Ms Wasteney, who describes herself as a “born-again Christian” and attends the Christian Revival Church, which has almost 3500 members in London and hold services at the 02 Arena, claimed unlawful discrimination and harassment because of religion or belief arising out of the disciplinary proceedings. that had been brought against her.

The law

In relation to direct discrimination, s 13 Equality Act 2010 provides that “a person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others” and religion or belief is a protected characteristics under s 10. 26.

In relation to indirect discrimination, s 19 provides that:

“(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.

(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if–

(a) A applies, or would apply, it to persons with whom B does not share the characteristic,

(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

(c) it puts, or would put, B at that disadvantage, and

(d) A cannot show it to be a proportionate means of achieving a legitimate aim.”

In relation to harassment, s 26(1) provides that:

“A person (A) harasses another (B) if–

(a) A engages in unwanted conduct related to a relevant protected characteristic, and

(b) the conduct has the purpose or effect of–

(i) violating B’s dignity, or

(ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.”

And under s 40(1) it is unlawful for an employer to subject its employees to harassment.

The issues

There were two issues before the Tribunal. In dealing with the complaint by EN, had the Trust engaged in unwanted conduct related to a relevant protected characteristic, namely religion or belief? And had the Trust’s behaviour infringed her Convention rights:

• by punishing her for inviting EN to events which happened outside of working hours, to which EN had willingly consented or alternatively, which she had encouraged by a failure to object, contrary to Article 8 (private and family life);
• by imposing a disciplinary sanction on her for sharing her faith with a consenting colleague, contrary to Article 9 (thought, conscience and religion); and
• by disciplining her for conversations between consenting adults, even where those conversations had been encouraged and initiated by EN, contrary to Article 10 (expression)?

In relation to her direct discrimination claim, the agreed comparator was an employee of a different faith or of no faith who entered into consensual discussions with, and provided support to, a colleague of a different faith or no faith.

The judgment

The Tribunal noted that the right under Article 9 ECHR was a qualified one and that Article 9(2) referred expressly to the fact that restrictions might be necessary to protect the rights and freedoms of others. It did not accept that the Convention gave Ms Wasteney “a complete and unfettered right to discuss or act on her religious beliefs at work irrespective of the views of others or her employer … In our judgment this case is simply about what happened and why and whether the Respondent had policies or ways of doing things (PCP’s) that put Christians (though not necessarily all of them) and the Claimant in particular at some group disadvantage” [67]. The Tribunal made it clear that it was not judging her beliefs [68].

The Tribunal found no basis for Ms Wasteney’s claim that the Trust had treated her in the various ways alleged because of religion or belief:

“The context of the disciplinary process … was religious acts but the reason for her treatment was because these acts blurred professional boundaries and placed improper pressure on a junior employee rather than that they were religious acts. We have no doubt that the employer would have taken a similar approach had, for example, the Claimant being pressing a particular political point of view of a view … It is clear to us that this distinction is one that the Claimant has difficulty understanding: we have no doubt that she felt and feels that what she did was with EN’s best interest at heart and that she was simply sharing with EN her positive experience of Christian belief” [69].

In conclusion:

• It reject the argument that it was an act of harassment or direct discrimination because of religion or belief to instigate disciplinary proceedings against her based on EN’s complaint: EN’s complaint was “a serious one on any view and there was some evidence to support it”. [69]
• It accepted the Trust’s evidence that it had considered alternatives to suspension [75] and that her suspension was reviewed regularly [76].
• The fact that the person who had suspended Ms Wasteney had then chaired the disciplinary panel had not been a breach of the Trust’s procedures [77].
• It rejected the claim that the sanction had been oppressive in all the circumstances: “the Claimant had been accused of serious misconduct amounting to a misuse of power. Furthermore we reject the Claimant’s case that the imposition of a final written warning or its replacement with a first written warning was treatment of her because of religion or belief” [82 & 83].
• Mediation under the Trust’s Dignity at Work Policy could not be applied: it had not been unreasonable to treat the matter as a disciplinary rather than a mediation issue. [87 & 88]
• There was no question of unjustifiable indirect discrimination: she was not disciplined simply for having a discussion about faith with EN but for subjecting a subordinate to unwanted conduct which went substantially beyond a “religious discussion” without having regard to her influential position and despite previous counselling and instruction to the contrary [92 & 93].
• There was no evidence to support the existence either of an unwritten policy that invitations to a service or event at a place of worship by a staff member of one faith to a staff member of another faith was prohibited [92] nor of an unwritten policy that the dissemination of any literature or other media that promoted the Christian religion was prohibited [93 & 94].

Claim dismissed.