Victoria Wasteney worked for East London NHS Foundation Trust as Head of Forensic Occupational Therapy, mainly at 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 junior 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. Before the Employment Tribunal, in Wasteney v East London NHS Foundation Trust  ET 3200658/2014, Ms Wasteney, who describes herself as a “born-again Christian”, had claimed unlawful discrimination and harassment because of religion or belief arising out of the disciplinary proceedings. Her claim was dismissed: we noted the earlier proceedings here. She appealed.
In Wasteney v East London NHS Foundation Trust (Religion or Belief Discrimination)  UKEAT 0157 15 0704 HHJ Eady QC, sitting alone, identified two principal issues:
“(1) Whether the ET erred in law in seeing the Claimant’s religion or belief as ‘context’ and not an exercise of her Article 9 Convention rights? and
(2) Whether it further erred in its failure to properly test the proportionality of the Respondent’s response, in terms of disciplinary sanction and the failure to consider the alternative of mediation?” .
The Claimant’s submissions
Ms Wasteney contended the ET failed to protect her Convention rights or gave inadequate reasons for dismissing her case. Specifically, she was disciplined for three acts that were clearly protected by Article 9 ECHR as manifestations of religious belief. By merely applying the domestic tests of causation (“because of” (direct discrimination) or “related to” (harassment)), the ET failed to ask whether there had been an interference with her right to manifest and, if so, whether that was necessary and proportionate under Article 9.2 . She further contended that Article 9.2 was not engaged: the matters leading to the disciplinary sanction were voluntary and consensual and there was no legitimate aim underpinning any interference by the employer; Article 9 allowed a right to proselytise and to try to change the religion of another (see Kokkinakis v Greece  17 EHRR 397) and, by failing to assess whether there had been any interference with her Convention rights the ET was wrong in law .
Further, she claimed that the ET had misdirected itself in finding that her religion was merely a context of the Respondent’s actions and not the reason for those actions in itself:
“if religion or belief informed the Claimant’s conduct, Article 9 was engaged and the question was whether the Respondent’s actions – which placed a restriction on that belief – were justified (Thlimmenos v Greece  31 EHRR 15)” .
The ET had also failed to apply the test of proportionality under EU law  and had misdirected itself as to the burden of proof under section 136 Equality Act 2010:
“Where there was evidence of religious animus, the burden shifted to the Respondent to prove the decision was in no way related to a prohibited ground; where a Convention right was engaged, that could only be if the reason was both relevant and compelling” .
Further, she complained the ET had failed properly to engage with her case, that the Respondent had wrongly applied its disciplinary policy as opposed to the Dignity at Work policy  and asserted that her interactions with EN had been consensual :
“In summary, whilst accepting that the Claimant’s claims had to be brought under domestic law, if Article 9 was engaged, the national Courts had to slot the case into domestic law, using whatever provision of the EqA was appropriate” .
The Respondent’s submissions
The Respondent noted that, though the Court had to have regard to the Convention, the right was not a freestanding one: in the employment context, the Convention was given effect by section 13 (direct discrimination) and section 26 (harassment) Equality Act 2010 . The matters raised did not arise, given the ET’s findings of fact :
“Specifically, it was not in issue before the ET as to whether the Respondent was entitled to find the Claimant had misconducted herself; the Claimant’s complaints had related to the procedural aspects of the disciplinary process. That infected the matters raised by the appeal” .
The Claimant’s grounds of appeal were on points that either had not been made before the Employment Tribunal or which were unsustainable. As to the Article 9 point:
“… none of the cases suggested that where a manager acted inappropriately towards a subordinate she could not be disciplined if religion formed part of the context of the inappropriate actions” .
“… the Convention did not give the Claimant a complete and unfettered right to discuss or act on her religious beliefs at work. The ET had not been required to undertake the analysis now effectively urged by the Claimant (a task required in an indirect discrimination case) of identifying the PCP [Provision, Criterion or Practice] applicable to the Claimant and others of a protected characteristic. The ET had carried out that task in respect of the Claimant’s indirect discrimination claim, which it had rejected and against which decision there was no appeal. The factual enquiry the ET was required to make in the context of the direct discrimination claim was into the basis of the treatment of the Claimant. It had done so and had concluded that it was not because of, or related to, her religious belief” .
The appeal was dismissed. HHJ Eady found that Ms Wasteney
“had not been subjected to disciplinary process or sanction because she manifested her religious belief in voluntary and consensual exchanges with a colleague but because … she subjected a subordinate to unwanted and unwelcome conduct, going substantially beyond ‘religious discussion’, without regard to her own influential position. The treatment of which the Claimant complained was because of, and related to, those inappropriate actions; not any legitimate manifestation of her belief” .
The sanction imposed by her employer had not been “oppressive”: a final written warning, reduced to a written warning on appeal, was not an oppressive sanction when an employer had made a finding of serious misconduct . Nor had the NHS Trust directly discriminated against her by pursuing the disciplinary process rather than mediation under the Dignity at Work policy : it was a serious allegation that had warranted investigation.
[See also our note on Mbuyi v Newpark Childcare (Shepherds Bush) Ltd  ET 3300656/2014]
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