Ben Collins QC represented the successful NHS Trust in Wasteney v East London NHS Foundation Trust, an important case on the application of Article 9 in claims for religion and belief discrimination.
The case, which has received national media coverage (click here for coverage from the Evening Standard and The Telegraph) concerned a Christian NHS manager who was disciplined for harassing a Muslim junior member of staff. The complaints made against the manager related to interactions which the complainant characterised as “grooming”; these included the manager’s praying with the junior worker and the laying on of hands, giving a book to the worker which concerned the conversion to Christianity of a Muslim woman, and inviting her to various services and events at the manager’s church. The manager was found to have misconducted herself and was given a final written warning, reduced to a first written warning on appeal.
An employment tribunal dismissed claims of direct and indirect discrimination and harassment on grounds of religion, and the claimant appealed to the EAT. She contended that the tribunal had failed to give effect to Article 9 ECHR, which protects not only the right to hold, but also to manifest religious belief.
The EAT dismissed the appeal. In doing so it grappled with the difficult question of how to give effect to Article 9.2 ECHR, which permits justification of an interference with the right to manifest religious belief, in the context of a claim for direct discrimination, which permits no defence of justification. In particular it considered cases such as Chondol v Liverpool City Council and Grace v Places for Children in which it was found that the reason for the employee’s treatment was not the manifestation of religious belief itself; but the way in which the manifestation took place.
Important and useful guidance can be derived from the judgment:
“If the case is one of direct discrimination then the focus on the reason why the less favourable treatment occurred should permit an ET to identify those cases where the treatment is not because of the manifestation of the religion or belief but because of the inappropriate manner of the manifestation (where what is “inappropriate” may be tested by reference to Article 9.2 and the case-law in that respect); see Chondol v Liverpool City Council [2009] UKEAT/0298/08 and Grace v Places for Children [2013] UKEAT/0217/13. Similarly, whilst the definition of harassment permits the looser test of “related to”, a clear sense of what the conduct did in fact relate to should permit the ET to reach a conclusion as to whether it is the manifestation of religion or belief that is in issue or whether it is in fact the complainant’s own inappropriate conduct (and that must be right, otherwise an employer’s attempt to discipline an employee for the harassment of a co-worker related to (e.g.) the co-worker’s religion or belief could itself be characterised as harassment related to that protected characteristic).”
Thus a manager who is disciplined for improperly imposing her religious beliefs on a junior member of staff may be said to have been disciplined, not because of the manifestation of religious belief itself, but because of the improper manner of manifesting it. Article 9 is given effect because Article 9.2 affects the assessment of what may be considered an improper manner of manifestation. In this way both Grace and Chondol remain good law following the judgment of the ECtHR in Eweida.
The EAT’s approach may be said to strike a sensible balance for the employer between the rights of employees who wish to manifest their faith, and those who consider themselves harassed by such manifestation.
Ben was instructed by Jonathan Pearce of Hempsons.
To view the full judgment, please click here.
Wasteney, Ben Collins QC, religious discrimination, employment law
