Rupa Mooker: Work and religion '“ never the twain shall meet?

Rupa Mooker, senior associate at law firm MacRoberts

Many UK businesses now have diverse and global workforces bringing together workers of different faiths. Workers who work together, eat together and … pray together? With such diversity, it is only a matter of time before an employer might have to deal conflicts involving religion and work.

The Equality Act 2010 protects workers against discrimination on various grounds, including religion or similar belief. One employer who has dealt with this recently is East London NHS Foundation Trust.

The trust employed Victoria Wasteney, who describes herself as a born again Christian, as the head of forensic occupational therapy. In June 2013, one of her colleagues, “EN”, who was of Muslim faith and Pakistani heritage, made several complaints against her. She felt “groomed” by Wasteney, who had allegedly told EN she needed to “invite Jesus to come into her spirit”. Also, Wasteney had prayed over her and laid hands on her by touching her knee. EN said she felt ill because of such behaviour.

In late 2013, Wasteney received a final written warning from the trust – subsequently reduced on appeal to a first written warning – for three charges of misconduct: praying with EN, giving her a book about a Muslim woman who converts to Christianity and inviting her to church events. Wasteney was held to have failed to maintain appropriate professional boundaries, taking into account her seniority in relation to EN.

Wasteney raised claims in the employment tribunal for direct discrimination and harassment on the ground of religion or belief. She was unsuccessful. The tribunal held the reason for her treatment was not because she carried out religious acts – it was because the religious acts placed inappropriate pressure on a junior colleague and blurred professional boundaries.

The tribunal also held the trust had not “harassed” her – she had argued that the disciplinary sanction was “oppressive” such as to amount to harassment.

Two in three Scots never go to church

Unhappy with the tribunal’s decision, Wasteney appealed. She argued, amongst other things, that the tribunal had not sufficiently considered her right to freedom of thought, conscience and religion under Article 9 of the European Convention on Human Rights. Article 9, she said, not only protected her right to hold a particular belief but also to manifest it.

She lost the appeal. The Judge noted that the manifestation of religious belief which Wasteney was relying on was “sharing her faith with a consenting colleague”. The Judge was clear; Wasteney had not been disciplined “because she manifested her religious belief in voluntary and consensual exchanges with a colleague but because … she subjected a subordinate to unwanted and unwelcome conduct, going substantially beyond ‘religious discussion’, without regard to her own influential position”.

So, in this case, the treatment that Wasteney was complaining about was because of, and related to, those inappropriate actions; not any legitimate manifestation of her belief. The trust was held not to have discriminated against her.

Following the decision on 7 April, Wasteney has said: “What the court clearly failed to do was to say how, in today’s politically correct world, any Christian can even enter into a conversation with a fellow employee on the subject of religion and not, potentially, later end up in an employment tribunal.”

The important thing to note is that Wasteney was not disciplined because of her religion or belief – she was disciplined because her conduct was unwanted and unwelcome by EN.

Employers should use common sense when dealing with such matters. Some may consider that talking about religion at work is a perfectly natural interaction to have with colleagues – others may feel less comfortable. Trying to cater for, and have a rule for, each and every interaction that workers might have with each other in the workplace is clearly difficult to do.

However, having up-to-date policies, procedures and guidance that cover religion and belief, and what is or is not considered acceptable in the workplace, goes some way towards assisting workers and employers.

Staff should be trained on the operation of such policies so that they are aware that not only is it unacceptable to discriminate, harass or victimise someone on the grounds of religion or belief, it is also unlawful. Finally, ensuring that disciplinary and grievance policies are in place is also vital – the law says that all employers, no matter how big or small, should have these.

• Rupa Mooker is a senior associate at law firm MacRoberts