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Case law: Disciplining an employee for proselytising in the workplace is not discrimination


 

 

Employers should ensure their staff, particularly those in positions of power, are clear they should not do anything that could be construed as imposing their religious beliefs on others, a ruling has confirmed.

 

A Christian manager in an NHS Trust was responsible for a Pakistani Muslim employee. The employee complained that the manager had imposed her Christian values on her over a prolonged period, in a number of ways, knowing she was a Muslim.

 

The employee alleged, for example, that:

 

  • when she told her manager she suffered from Crohn's Disease the manager told her there was no such disease because it was not in the Bible, and only Jesus could make her well again;
  • the manager invited her to Christian services, sent her tickets to Christian events and invited the employee to pray with her;
  • the manager laid hands on her and encouraged her to 'ask Jesus to come into you';
  • the manager told her to 'invite Jesus to come into her spirit' and to say out loud 'I believe you are the son of God, Jesus; I believe in you and your power; come into me and heal me';
  • the manager gave her a book about a female Pakistani Muslim who converted to Christianity;
  • on one occasion when she ran to the toilet because the manager had upset and distressed her, the manager followed her in.

 

The manager was suspended and given a first written warning (initially a final warning, but reduced on appeal). She claimed religious discrimination, including that the employer had breached her rights to manifest her religious beliefs at work under the European Convention on Human Rights (ECHR).

 

In fact, the right under the ECHR to manifest a religious belief at work is subject to a condition that doing so does not infringe on the rights and freedoms of anyone else.

 

In this case the Employment Appeal Tribunal (EAT) found that the manager had done more than 'enter a conversation about religion' and then back off because her views were not accepted, or encouraged or welcome. Instead, she had persisted, even when told informally but clearly that she needed to create distinct boundaries between her work life and her religious life, and that her behaviour was particularly inappropriate as she was in a position of power over the employee.

 

The EAT therefore ruled that, by 'subjecting a subordinate to unwanted and unwelcome conduct going substantially beyond religious discussion without regard to her own senior position', the manager had gone beyond her right to manifest her religious belief at work. The imposition of a first written warning in the course of a proper disciplinary procedure did not therefore amount to discrimination by the employer.

 

The law is identical in relation to sexual preferences, so attempts in the workplace to convert someone of one preference to another, or otherwise impose one's views on sexual preference on another, would be treated in the same way.

 

Additional guidance from the EAT includes the following:

 

  • It is not necessary for an employee to say or show at the time that they are distressed or upset by another employee's behaviour - particularly where the employee feels unable to complain because, for example, they are junior to the other person.
  • There is no need for the behaviour to be intended to cause upset or distress (on the contrary, the behaviour may be with the best of intentions). It is enough if that is, in fact, its effect.

 

Operative date

  • Now

Recommendations

  • Employers should ensure it is clear to staff, particularly those in positions of power over others, that they should not do anything that could be construed as imposing their religious beliefs on others, whatever their motives.
  • The same applies in relation to sexual preferences.

 

Case ref: Morgan v Royal Mencap Society UKEAT/0272/15/LA

For assistance with any matter relating to employment law, please contact our expert Guy Salter on 01905 723561 or e-mail Guy.Salter@smesolicitors.co.uk

Added: 24 May 2016 16:55


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