In October we reported that a nurse at Croydon University Hospital, Ms Mary Onuoha, was to appear at an Employment Tribunal alleging that she had been bullied by her employers for wearing a small gold cross. In December 2021, in a reserved judgment, it was held that the Claimant’s claims succeeded in substantial part before the Employment Tribunal, Mrs Onuoha v Croydon Health Services NHS Trust, [2021] ET 2300516/2019. Extracts from the Summary are reproduced below; the full 98-page decision is here.

Background

The Claimant is a Roman Catholic employed as Theatre Practitioner by the Respondent NHS Trust. She wore, both in and out of work, a necklace with a small cross pendant on it (‘Cross-Necklace’). The Respondent’s Dress Code and Uniform Policy prohibited the wearing of necklaces in clinical areas, based upon health and safety and other concerns.

For the first 13 or 14 years of her employment, commencing in 2001, she wore a Cross-Necklace at work without any problem or challenge. She was first asked to remove it in 2014; however, she refused for religious reasons and there was no real follow up. The issue arose again once in 2015 and once 2016. Each time the Claimant refused to remove the Cross Necklace and there was no follow up.

In 2017 the Respondent was criticised in a CQC inspection for failing to enforce its Dress Code and Uniform Policy. Thereafter in the summer of 2018 it made some efforts to enforce the policy. For the most part, those efforts took the form of general briefings to all staff and were ineffective. The wearing of jewellery, including necklaces, remained rife. However, in a few cases, a more determined effort was made. In the Claimant’s case she was required to stop wearing the Cross-Necklace or failing that accept some compromise. The Claimant declined to remove the Cross-Necklace or to compromise in relation to wearing it.

The dispute between the Claimant and the Respondent escalated into both disciplinary and grievance procedures. The Claimant was redeployed to non-clinical duties. She was given a final warning and her grievance was rejected. She continued to refuse to remove her Cross-Necklace. She resigned claiming constructive dismissal upon the Respondent indicating that it would commence a second set of disciplinary proceedings.

The Claimant complained that her treatment by the Respondent was in breach of her rights under Article 9 of the European Convention on Human Rights. Article 9 confers a qualified right to manifest religious beliefs. She further complained that her treatment was direct religious discrimination, harassment, victimisation and indirect religious discrimination under the Equality Act 2010. Finally, she complained that she had been constructively unfairly dismissed.

Summary of Decision

The Claimant’s claims succeeded in substantial part before the Employment Tribunal. It found that:

• The Claimant’s Article 9(1) ECHR rights engaged and had been interfered with. The Respondent had failed to justify the interference pursuant to Article 9(2). In essence that was because, although there was a small risk to health and safety posed by the Claimant wearing the Cross-Necklace:

o Wearing jewellery including necklaces was rife among the Respondent’s workforce. Many doctors and nurses continued to do it even during the period in which the Claimant was being disciplined. This was widely tolerated by management;
o The Respondent allowed its employees to wear other items of religious apparel (including headscarves, turbans and kalava bracelets) that had broadly comparable risk profiles in terms of health and safety as a Cross-Necklace. There was no proper explanation as to why those items were permitted but a Cross-Necklace was not.

• Although the tribunal has no direct jurisdiction to hear a complaint of breach of Article 9 ECHR, it is entitled and obliged to take into account whether conduct breaches Article 9 when deciding complaints that are in its jurisdiction. The breach of Article 9 was therefore material to the tribunal’s analysis of the other claims.
• The tribunal found that in a number of ways related to the requirement to remove the Cross-Necklace the Respondent had directly discriminated against and harassed the Claimant, or in the alternative indirectly discriminated against her. A single complaint of victimisation also succeeded.
• The tribunal found that the Respondent’s conduct was sufficiently serious to amount to a repudiatory breach of contract and that the Claimant had been entitled to resign and claim constructive dismissal. The dismissal had been both discriminatory and unfair.
• The majority of the tribunal (Employment Judge Dyal and Ms Forecast) rejected the suggestion that in requiring the Claimant to remove her Cross-Necklace the Respondent was deliberately targeting the Cross as a symbol of the Christian faith and more generally the majority rejected the suggestion that the Respondent had acted out of any kind of prejudice towards the Christian faith.

Comment

As we noted in our earlier post, this is highly reminiscent of the facts in Shirley Chaplin’s case, which went all the way to Strasbourg, where she was unsuccessful: see Eweida and Others v The United Kingdom [2013] ECHR 37. However, the truism that individual cases turn on their facts is particularly relevant to employment disputes.