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22nd April 2016

Does disciplinary action amount to discrimination?

The issue of discrimination in employment is often a tricky subject, and employers should always be aware of the potential implications of their conduct in respect of the ways in which employees are treated after they have raised a potentially protected characteristic.

Under the Equality Act 2010, employees are protected from being subjected to detriment or less favourable treatment because of race, sex, sexual orientation, religion or belief, disability, gender reassignment, marriage or civil partnership, and pregnancy or maternity.

But to what extent should an employee’s right to express their religious beliefs be balanced with another employee’s right not to be subjected to unwanted conduct at work.

Wasteney v East London NHS Foundation Trust [2015]

This issue was recently addressed by the Employment Appeal Tribunal (EAT) in the case of Wasteney v East London NHS Foundation Trust [2015].

Miss Wasteney described herself as a born-again Christian, and worked for the Trust as Head of Forensic Occupational Health Therapy. In 2011, Miss Wasteney launched an initiative in which volunteers from her church provided religious services at the Trust’s facility. The Trust was initially receptive to the idea of establishing regular Christian worship at the Centre, but concerns arose about this initiative, following a number of allegations of improper pressure on staff and service users. These concerns led the Trust to suspend the services, and to give informal advice to Miss Wasteney about the need for boundaries between her spiritual and professional lives.

In 2013, a complaint was made by an Occupational Therapist working for the trust who was of Muslim faith. She accused Miss Wasteney of subjecting her to unwanted conduct, including telling her that she needed to let Jesus into her life, praying over her, and laying her hands on her by touching her knee. This conduct caused the employee to feel ill and that Miss Wasteney was “grooming” her.

The Trust initiated disciplinary action, and considered whether Miss Wasteney had failed to maintain appropriate professional boundaries, taking into account her seniority in relation to the employee who made the complaint. Miss Wasteney was found to be guilty of serious misconduct and was given a final written warning, which was eventually downgraded to a first written warning. She claimed that for the Trust to discipline her in these circumstances amounted to discrimination on the grounds of her religion or belief and harassment.

The Employment Tribunal rejected these claims, and the EAT agreed.

There was a distinction to be drawn between merely manifesting a religious belief, for which disciplinary action would be unlawful discrimination, and on the other hand, disciplining somebody for improperly promoting a religious belief in a way that was not consensual, and which took advantage of someone in a subordinate relationship. The latter example would not amount to unlawful discrimination.

Miss Wasteney attempted to argue that Article 9.1 of the European Convention on Human Rights (freedom of thought, conscience and religion) would assist her. This was qualified by Article 9.2 (the rights and freedoms of others). However, both the employment Tribunal and the EAT agreed that this did not give Miss Wasteney "a complete and unfettered right to discuss or act on her religious beliefs at work irrespective of the views of others or her employer".

In rejecting Miss Wasteney's appeal, the EAT considered that the Employment Tribunal had approached its task correctly and provided a proper and adequate explanation of its reasons.

Best Practice

This case should provide some protection for employers when taking disciplinary action against employees in similar circumstances. Employees have every right to manifest a religious belief at work; however, they do not have the right to use their religion of belief to enforce their belief on other, more junior employees, when such conduct is unwanted and can be seen as an abuse of authority and seniority.

If employers decide to implement a disciplinary procedure in respect of an employee, best practice will be to make sure that a thorough investigation is carried out before any disciplinary hearing is held, and the reasons why the employee’s conduct is considered to be unsatisfactory should be clear and unambiguous. Any outcome, including the reasons for imposing a sanction, should be detailed in a letter after the disciplinary hearing. If a fair and reasonable procedure is followed, and the reasons for a sanction are clear, this will place employers in the best position to defend any argument that the reason for the disciplinary action was discriminatory on the grounds of a protected characteristic.

Anthony Fox, Employment Partner, Napthens LLP – QCS Expert Employment Law Contributor


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