The claimant, who described herself as a ‘born-again Christian’, worked for the NHS Foundation Trust as Head of Forensic Occupational Therapy, mainly at a secure mental health services facility for patients admitted under the Mental Health Act 1983. She had been given a final written warning by the Trust for three charges of misconduct: praying with EN, a Muslim junior colleague of Pakistani heritage, giving her a book about a Muslim woman who converted to Christianity and inviting her to church events. That final written warning had subsequently been reduced on an internal appeal to a first written warning. Before the Employment Tribunal (ET) the claimant had unsuccessfully claimed unlawful discrimination and harassment because of religion or belief arising out of the disciplinary proceedings.
On appeal, HHJ Eady identified two principal issues: whether the ET had erred in law in seeing the claimant's religion or belief as ‘context’ and not as an exercise of her rights under Article 9 of the European Convention on Human Rights (ECHR), and whether it had further erred in its failure properly to test the proportionality of the Trust's response of a disciplinary sanction rather than considering the alternative of mediation.
The claimant contended, inter alia, that the ET had failed to protect her ECHR rights or had given inadequate reasons for dismissing her case. The acts for which she had been disciplined were manifestations of religious belief protected by Article 9 of the ECHR and the ET had failed to ask whether there had been an interference with her right to manifest and, if so, whether it had been necessary and proportionate under Article 9.2. She further contended that the matters leading to the disciplinary sanction were voluntary and consensual, that there was no legitimate aim underpinning any interference by her employer and that, by failing to assess whether there had been any interference with her convention rights, the ET had been wrong in law. Further, the ET had misdirected itself in finding that her religion was merely a context of the Trust's actions and not the reason for those actions in itself, had failed to apply the test of proportionality under EU law and had misdirected itself as to the burden of proof under section 136 of the Equality Act 2010.
The Trust argued that, although the court had to have regard to the ECHR, the right was not a free-standing one: in the employment context, the ECHR was given effect by sections 13 (direct discrimination) and 26 (harassment) of the Equality Act 2010. The matters raised were without merit, given the ET's findings of fact; and the claimant's grounds of appeal were on points that either had not been made before the ET or that were unsustainable. As to the Article 9 point, none of the cases suggested that where a manager acted inappropriately towards a subordinate she could not be disciplined if religion formed part of the context of the inappropriate actions.
The Employment Appeal Tribunal found that the claimant had not been disciplined because she had manifested her religious belief in voluntary and consensual exchanges with a colleague but because she had subjected a subordinate to an unwelcome intrusion without regard to her own influential position. Her treatment had resulted from her inappropriate behaviour, not from any legitimate manifestation of her belief; and a final written warning, reduced to a written warning on appeal, was not an oppressive sanction when an employer had made a finding of serious misconduct. The appeal was dismissed. [Frank Cranmer]
