Disciplinary action for an employee’s unwelcome religious discussion can be lawful
Some employees will feel that, as part of their religious belief, they need to tell others about their faith.
Some employees will feel that, as part of their religious belief, they need to tell others about their faith. This can cause considerable difficulty for employers, particularly where other employees object to such issues being raised with them. The Employment Appeal Tribunal in its Judgment in Wasteney –v- East London NHS Foundation Trust has re-emphasised that disciplinary action for the way in which an employee manifests or shares their religion can be lawful.
Ms Wasteney was the Head of Forensic Occupational Therapy at a mental health service facility. She describes herself as a born-again Christian. She was counselled by her manager informally about the need for boundaries between her spiritual and professional lives. Subsequently, an Occupational Therapist in her first twelve-month placement post-training, who was of Pakistani heritage and Muslim faith, complained about the way that Ms Wasteney had acted towards her. These complaints were investigated, and three allegations of inappropriate conduct were upheld following a disciplinary hearing. These allegations were that Ms Wasteney had: given a book promoting conversion to Christianity to the OT; had prayed for the OT in a one-to-one meeting and laid hands on her; and on several occasions had invited her to attend Church events. She was given a final written warning, reduced on appeal to a written warning. Ms Wasteney brought a Tribunal claiming that she had been the subject of religious harassment and discrimination as a result of the disciplinary action being taken and the sanction being imposed.
The Employment Tribunal rejected her complaints and that decision has been upheld by the Employment Appeal Tribunal. The appeal particularly emphasised Ms Wasteney’s right under the European Convention of Human Rights to manifest her religion or belief (which does require employers to at least consider a reasonable accommodation of religious speech), and contended this had been incorrectly applied when her claims for direct discrimination and harassment were considered. Some key elements of the decision are:
- The EAT reiterated the important distinction between disciplinary action taken because of the way in which someone manifests or shares their religious belief, as opposed to action because of their religion or belief;
- The EAT also emphasised that the protection of religion or belief cannot enable someone to express their belief in any way they like without risk of action (as indeed such conduct can be discrimination and harassment of others);
- In this case it was important that Ms Wasteney had not shared her faith with a consenting colleague, but rather had been found by the employer to have undertaken acts which blurred professional boundaries and placed improper pressure on a junior colleague;
- The EAT identified the difference in the relationship between a senior and junior (as opposed to two equivalent colleagues), where the junior employee may feel unable to expressly reject unwanted approaches (and things such as the book); and
- In this case, Ms Wasteney had not been subject to a disciplinary process or sanction because she manifested her religious belief in a voluntary and consensual exchange with a colleague, but because of unwanted conduct which went substantially beyond ordinary religious discussion, particularly with regard to her influential position.
What does this mean for me?
If your organisation does wish to take disciplinary action against someone for actions which are connected to religion or belief but which are felt to be misconduct, this case confirms that you can do so. You will need to carefully consider why the alleged action is inappropriate and what exactly it is about the employee’s behaviour that that could result in a disciplinary sanction. Purely consensual conversations between colleagues about religion in the workplace are arguably protected by the European Convention, but in practice raise risk for you as an employer; where employees have different religious views, there is always the risk that ultimately they may allege that they were harassing each other. However, unwanted conduct and, in particular, a more senior employee undertaking such conduct within a managerial relationship, is something which can result in appropriate action. Do ensure that the basis for any such action is the way in which the individual conducted themselves and not because of their religion or belief. Consistency is also key.
The EAT placed great emphasis on the fact that someone’s ability to talk about or promote their own religion cannot be a right which is without limitation. However as the EAT observe this is “in some senses easier to state than apply”. It is this distinction that will cause you problems when considering or conducting disciplinary action in similar circumstances. Do tread with care. This Judgment re-emphasises that lawful action can be appropriately taken, but does highlight the pitfalls that can arise in doing so. Do take advice.
If this alert raises any issues for your organisation please speak to your usual contact in the Weightmans employment pensions and immigration team, or contact Phil Allen (email@example.com).