Disciplinary action held not discriminatory

In the recent case of Wasteney v East London NHS Foundation Trust, the Employment Appeal Tribunal (EAT) held that disciplinary action taken by the employer against a senior manager for imposing her Christian beliefs on a Muslim junior employee was not discriminatory.

By way of background, Ms Wasteney, who described herself as a born-again Christian, was employed by the East London NHS Foundation Trust as Head of Forensic Occupational Therapy at a mental health services facility. Ms Wasteney had previously been given informal advice from her employer about the need for boundaries between her spiritual and professional life.

In 2013, a complaint was made against Ms Wasteney by an Occupational Therapist who was of Muslim faith. The complainant stated that Ms Wasteney had sent her religious DVDs, tickets to church events, told her that she needed to let Jesus into her life, given her a book about a Muslim Pakistani woman who had converted to Christianity and had prayed over her and laid hands on her knee. The complainant stated that this conduct made her feel ill and that Ms Wasteney was ‘grooming’ her. The NHS Trust investigated and concluded that the allegations against Ms Wasteney were founded

The NHS Trust believed that Ms Wasteney had failed to preserve appropriate professional boundaries, taking into account her seniority in relation to the complainant and subsequently gave a final written warning. Ms Wasteney appealed and the final warning was downgraded to a first written warning with a recommendation of training. Ms Wasteney then brought a claim against the NHS Trust for direct discrimination and harassment because of/related to her religion or belief. The employment tribunal rejected her claim and she subsequently appealed to the EAT.

The EAT dismissed the appeal and held that Ms Wasteney’s case was presented by her on a portrayal of the manifestation of her religious belief in “consensual” interactions with the junior worker.  The EAT held that the tribunal did not find the NHS Trust had however taken action against Ms Wasteney on that basis but instead because she subjected a subordinate to unwanted and unwelcome behaviour, going substantially beyond “religious discussion”, without regard to her own influential position

This case highlights the importance of ensuring that any disciplinary action taken against an employee is because of misconduct in question, rather than being related to any relevant protected characteristics, which could give rise to successful discrimination claims.