EMPLOYMENT 

Express Yourself 

The ability of employees to express their religious views within the workplace is a hotly contested topic which has given rise to a number of notable cases over the years.

Employers must be mindful of an employee’s Article 9 rights to freedom of thought, conscience and religion in the course of their employment. This was evidenced in the significant and widely publicised 2013 European Court of Justice judgment in Eweida & Others v United Kingdom where the ECJ concluded that British Airways refusal to allow Ms Eweida to remain in her post while visibly wearing a cross amounted to an interference with her right to manifest her religion.

This issue raised itself once more in the recent Employment Appeal Tribunal (EAT) Judgment in Wasteney v East London NHS Trust.

The Claimant Ms Wasteney, who describes herself as a born-again Christian, was employed as Head of Forensic Occupational Therapy within the East London NHS Foundation Trust. This case concerned a junior colleague of Ms Wasteney who was described as being of Pakistani heritage and Muslim faith who made complaints against Ms Wasteney which she characterised as ‘grooming’. The conduct complained of included;

-Receiving DVD’s and tickets to Church events
-Praying over her and the laying on of hands,
-Giving her a book which concerned a Muslim Pakistani woman who had converted to Christianity

The above complaints were investigated by the Trust which found Ms Wasteney guilty of serious misconduct by blurring professional boundaries and subjecting a junior colleague to improper pressure and unwanted conduct. She was given a final warning which was subsequently reduced to a first written warning on appeal. Ms Wasteney claimed unlawful religious discrimination and harassment which included her contention that her Article 9 rights had been infringed.

In its judgment the Employment Tribunal rejected those claims and the EAT subsequently upheld its decision.

The EAT highlighted in its judgment that Ms Wasteney’s Article 9 rights were qualified and subject to limitation by the rights and freedoms of others under Article 9.2. In drawing a distinction between this case and the Eweida judgment however Judge Eady QC stated that;
‘The claimant was not subjected to disciplinary process or sanction because she manifested her religious belief in voluntary and consensual exchanges with a colleague but because, as the employment tribunal expressly found, she subjected a subordinate to unwanted and unwelcome conduct, going substantially beyond ‘religious discussion’, without regard to her own influential position.’

Key to the EAT’s judgment was its finding that the Claimant’s actions were ‘unwanted and unwelcome’ and therefore extended beyond a ‘legitimate manifestation of her belief’.

This case serves to highlight the difficulty employers face when trying to balance the competing interests of employee freedom of expression against the right of an employee not to be subjected to unwanted conduct on the basis of a protected characteristic. As ever, although some lessons and principles can be drawn from case law, each case should be judged on its own facts. We recommend that employers take specific legal advice before taking any action against an employee arising from an expression of their religious belief.

 

 

Image courtesy of koratmember at FreeDigitalPhotos.net

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