The issue of manifesting one’s religion at work has come up yet again: this time in relation to a medic who used overtly Christian references in his professional communications – on one occasion circulating to his colleagues a prayer of Ignatius Loyola which he described as a personal inspiration in his “frail and imperfect efforts to serve my patients, their families and our department”.
In Drew v Walsall Healthcare NHS Trust  UKEAT 0378 12 2009 Dr David Drew, a paediatric consultant, worked in a multicultural and multi-faith department. His habit of using Christian references in e-mails caused irritation; and an internal investigation recommended, inter alia, that he should keep his personal and religious views to himself. He did not accept that and raised a grievance; and it was agreed that the Royal College of Paediatrics should carry out an independent review.
The College’s review panel of two consultants and an HR practitioner made a number of recommendations, one of which was that he should not include religious references in professional communications, to which Dr Drew replied that he accepted the panel’s recommendations but subject to certain exceptions. As to the panel’s recommendation on religious references, he replied:
“I cannot agree to this. Our language is replete with allegory and metaphor much of it with a religious connotation. I am not a fanatic. I am not a proselytiser. My purpose is purely expressive and not religious at all … I believe this recommendation is unnecessary. I do not believe you are likely to have difficulty in this area again if you are willing to trust me”.
He was ultimately dismissed; and his claim of direct discrimination before an Employment Tribunal was unsuccessful. The ET concluded that he had not been treated less favourably on the grounds of or because of his Christian religion or beliefs, contrary to the Employment Equality (Religion or Belief) Regulations 2003 (which was the law in force at the relevant time). The Telegraph carried a fairly balanced contemporary report of the proceedings in the ET.
Earlier this month the Employment Appeal Tribunal dismissed his appeal. The EAT held that the lower tribunal had directed itself correctly in following and applying the guidance in London Borough of Islington v Ladele  UKEAT 0453 08 1912. It had identified the correct hypothetical comparator: someone whose relevant circumstances were the same as Dr Drew’s (apart from Dr Drew’s protected characteristic as an “orthodox Christian”) and who had acted in the same way as Dr Drew but within the frame of reference of that person’s own belief system – whether a religious or a non-religious one. The ET had been entitled to conclude that such a comparator would have been treated in the same way as Dr Drew had been; nor was its conclusion perverse or based on an error of law.
The Daily Mail subsequently reported that “Dr Drew was meeting with his legal team yesterday to discuss the case” but he later told the Wolverhampton Express & Star that he was not proceeding any further.
Dr Drew contended that his dismissal was not about religion at all, but the result of his repeated warnings that cost-cutting was putting patient safety at risk – “It’s all about whistleblowing” – but the judgment of the EAT concentrated, nevertheless, on the religious issue. Perhaps surprisingly, Article 9 ECHR did not even receive a mention in the EAT’s judgment; but the issue comes very near the kind of “clash of rights” that is so common in human rights cases. Dr Drew may have thought that he was merely being open about his Christian faith without realising how deeply irritating displays of religiosity can sometimes be for the non-religious – or for that matter, for people of other religious views.
To the question, “is there a right to hold religious views in the workplace?” the answer is obviously “yes”. To the question, “is there a right to bang on about one’s religious views in the workplace?” the answer is probably that it depends on circumstance and is largely a matter of degree. Issues of health and safety aside, it is hardly unreasonable behaviour for an observant Jewish man to wear a kippah or a devout Muslim woman to wear a hijab in a secular workplace. On the other hand, a Sikh who was constantly being sent proselytising e-mails by an Evangelical Christian colleague might be entirely justified in getting ratty and complaining. There is no “right” not to be exposed to opinions with which one disagrees – for a fairly extreme case in point see Fraser v University & College Union  ET 2203290/2011 – but, equally, there is surely no “right” to promote one’s religious views to a degree that irritates others.
Some cases about religion in the workplace relate to matters that are critically important to the people concerned: an obvious example is Doogan & Anor v NHS Greater Glasgow & Clyde Health Board  ScotCS CSIH 36, about the Roman Catholic labour ward coordinators who are claiming a conscientious objection to what they see as helping to manage a ward in which abortions are performed – and on which the forthcoming judgment of the Supreme Court is awaited with interest. But perhaps cases like Drew would never get as far as an EAT at all if people of faith simply learned to act with a degree of restraint and consideration for the feelings of others.
Or as Mark Twain put it, with his usual mixture of wit, brevity and insight, “All things in moderation, including moderation”.