Born-again Christian’s religious discrimination and harassment claims fail

Trying to convert a Muslim colleague to Christianity was misconduct

In the case Wasteney v East London NHS Trust, the Employment Appeal Tribunal had to consider whether issuing a disciplinary warning to an employee who preached Christianity to a more junior colleague, who was Muslim, was religious discrimination.

Wasteney, a born-again Christian, was head of forensic occupational therapy at the NHS trust. Complaints had been made about her by a Muslim occupational therapist relating to various interactions she had had with her, which the junior colleague characterised as “grooming”. These included the more senior woman praying with her and the laying on of hands, giving her a book on a Muslim woman’s conversion to Christianity, and inviting her to services and events at her Church.

The employer investigated the complaints under its disciplinary procedure and found Wasteney guilty of serious misconduct, namely blurring professional boundaries and subjecting a junior colleague to improper pressure and unwanted conduct. Wasteney was given a final written warning; she appealed and the employer reduced it to a first written warning.

Wasteney claimed she had been discriminated against because of her religion or belief, that she had suffered harassment because of her religion or belief, and that her employer had breached her right to freedom of thought, conscience and religion under the Human Rights Act 1998 by imposing a disciplinary warning on her for exercising her right to ‘manifest her belief’ by sharing it with a consenting colleague. An employment tribunal rejected her claims and she appealed.

The EAT rejected her appeal. She had characterised the sharing of her religious beliefs with her more junior colleague as voluntary and consensual exchanges. However, as the tribunal had found, the employer had not given her a warning because she had manifested her belief, but because she subjected a subordinate to unwanted and unwelcome conduct, going substantially beyond ‘religious discussion’, without regard to her own influential position. The employer’s actions related to her own inappropriate actions – it was not related to a legitimate manifestation of her beliefs. So, her direct discrimination and harassment claims could not succeed.

On the human rights claim, the convention did not give her an absolute right to discuss or act on her religious beliefs at work, irrespective of the views of others or her employer. The right to freedom of religion was a qualified right which could not be exercised in a way which impinged on the rights and freedoms of others.

The EAT held that the employment tribunal had approached its task correctly and had provided a proper and adequate explanation of its reasons, with which the EAT agreed.

This case clarifies the legal principles that apply (and the dividing line that can be drawn) when employees demonstrate their religious beliefs by adopting an evangelical ‘help you see the light’ approach that upsets colleagues.

To succeed, a direct religion or belief discrimination claim must show less favourable treatment ‘because of’ a religion or belief. Tribunals have to consider why the less favourable treatment occurred. If it was for another reason – in this case, subjecting a colleague to unwanted and unwelcome conduct – then discrimination will not have occurred.

Equally, for a harassment claim to succeed, the alleged unwanted conduct must be ‘related to’ religion or belief. This can mean because of an individual’s religion (for example, he or she is a Christian) or because of religion in general (for example, telling jokes about Jewish people that offend non-Jewish employees). If the conduct complained of has nothing to do with religion, there is no basis for a harassment claim.

Many employees do not understand that the right to manifest one’s religious belief, like many other rights, is constrained by the law, has a number of other limitations, and cannot be exercised so that it has a negative impact on the rights and freedoms of others. Explaining this to employees and including it in a diversity policy could help ‘head off trouble at the pass’.


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