Proselytising at work

Religious rights iStock 000010158473XSmall 146x209Susan Belgrave considers the difficulties for employees and employers in dealing with proselytising at work.

The recent appeal of Victoria Wasteney in respect of being disciplined for harassing a Muslim colleague has certainly received the tabloid treatment in the newspapers as many discrimination cases do nowadays, however, the legal principles are reasonably well settled in this area.

The case follows a steady line of authority where an employee has been accused of proselytising in the workplace to an extent which is deemed unacceptable by colleagues, customers or managers. These cases are extremely fact sensitive and when, beyond the lurid headlines, the facts are considered the result is perhaps unsurprising.

The facts

The claimant started working for the respondent (East London NHS Foundation Trust) as Head of Forensic Occupational Therapy at a mental health services facility which provided secure accommodation to which patients were admitted under the Mental Health Act 193.

The claimant described herself as a born again Christian and attends an evangelical church. The respondents had initially welcomed an initiative by the claimant to have members of her church come into the centre to conduct religious services at the facility where she worked in 2011. These were suspended after complaints by staff and service users about how the worship was conducted and the claimant’s role. The claimant was counselled and warned informally about the need to maintain boundaries between her spiritual and professional lives.

In 2013 a junior occupational therapist complained about the claimant’s behaviour. The therapist, EN, was a Muslim woman in her first extended period away from home who was on her first 12 month placement post training. Ms Wasteney was a senior colleague in her department. EN described her treatment as ‘grooming’. She said that the claimant was aware she was a practising Muslim and although she had been invited to events at the claimant’s church she had never attended. She said the claimant’s attention began to make her feel ill, she was given DVDs and tickets to church events. She described how the claimant had told her to repeat certain religious words "I believe you are the son of God Jesus, I believe in you and your power, come and heal me".  The claimant had given her a book about a Muslim woman who had converted to Christianity and told her she had a choice to make. When EN told the claimant that she had Crohn’s disease the claimant said that the disease did not exist because it was not in the Bible. She had prayed over EN and laid hands on her for about 10 minutes and followed her into the toilet where EN had escaped to hide her distress. EN had only complained towards the end of her placement when she said that the claimant had completely ruined her first year of practice.

The respondent initiated a disciplinary investigation and at the hearing the claimant was given a final written warning which was reduced on appeal to a first written warning. The claimant had an otherwise unblemished disciplinary record. The claimant brought claims for direct discrimination, indirect discrimination and harassment and argued that her discussion with EN had been  consensual and that employees are free to discuss their religion at work; thus her treatment by her employer infringed Article 9 of the European Convention on Human Rights. Her claim was dismissed and she appealed unsuccessfully to the EAT, HHJ Eady presided.

EAT ruling

In Wasteney v East London NHS Foundation Trust (Religion or Belief Discrimination) [2016] UKEAT 0157_15_0704, HHJ Eady noted that there were certain important findings of fact made by the tribunal which made the points advanced by the claimant unsustainable. The tribunal concluded that the contact made by the claimant with EN was not consensual. The employer and the tribunal were concerned about the impact of the claimant’s seniority, which placed a junior member of staff under considerable pressure to acquiesce in her requests to engage with the claimant’s religion. The claimant had acknowledged that in certain circumstances her behaviour had been inappropriate. The employer had been measured in its response. For instance, the employer had dismissed a claim in relation to the claimant giving EN a DVD about people trafficking because it was accepted that they shared a common interest in that issue. They noted that EN had responded in a friendly way to text messages from the claimant inviting her to attend her church but had always made an excuse why she could not attend. The disciplinary sanction imposed had been reduced from a final written warning to a first written warning and the claimant had previously been counselled and warned about her behaviour.

In this context, the application of the relevant law was then relatively straightforward. This followed a line of cases starting with Chondol v Liverpool City Council, Amachree v Wandsworth Council and more recently Grace v Places for Children. When dealing with direct discrimination claims (the claimant abandoned indirect discrimination claim) and harassment the questions for the tribunal were: whether the respondent had discriminated against the claimant because of her religion or, in harassment claims, for a reason related to her religion. The courts had to consider whether there had been an infringement of the claimant’s rights under Article 9 of the European Convention which applies to the workplace (Article 9.1 – right to hold a religious belief and 9.2 – right to manifest that belief – which is circumscribed under the Convention).

Here the EAT re-iterated the point made in Grace that the distinction between holding and manifesting should not be overstated as it is meaningless to hold a religious belief if it cannot be manifested. Judge Eady cited Grace: "There is no clear dividing line between holding and manifesting a belief… an unjustified unfavourable treatment because an employee has manifested his or her religion may amount to unlawful discrimination". However, the crucial question is the extent to which religious beliefs can appropriately be manifested in the workplace and whether disciplinary action can properly be taken in those circumstances. The tribunals and the EAT have been consistent in holding that where the discussions or proselytising are not consensual or may seem to blur inappropriately the lines between personal and professional behaviour (and, in this case, put a vulnerable member of staff in a difficult position in relation to the action of a senior member of staff) then this was not protected by the legislation. The reason why the claimant had been disciplined had little to do with her religious beliefs but more to do with her inappropriate behaviour and abuse of her seniority.

Given the clear findings of fact about the claimant’s behaviour, her acknowledgement that she had behaved inappropriately, the previous warning and counselling she had received and the reduction of the disciplinary sanction to a first written warning this result seems unimpeachable. Irrespective of the views of the headline writer, these cases turn on the facts.

Susan Belgrave is a barrister at 7 Bedford Row.