April 08 2016

What religious employees can & can’t do at work

Associate Professor in Law Dr Erica Howard looks beyond the headlines to uncover the crucial details of the case of NHS worker Victoria Wasteney that weren’t reported in the mainstream media.

Yesterday, the London Employment Appeal Tribunal handed down its judgment in the case of Wasteney v East London NHS Foundation Trust. The Tribunal dismissed Victoria Wasteney’s appeal against a decision of the employment tribunal that she had not been discriminated against on the ground of her religion or belief by her employer.

The BBC website reported on the case with the headline: NHS Christian worker loses appeal after ‘giving book to Muslim colleague’. The article explains that Ms Wasteney, a Christian health worker, was found guilty by her employer of “harrassing and bullying” a work friend. Her employer had suspended her for this and she had challenged this suspension as discriminating against her on the ground of her religion. According to the BBC article, Ms Wasteney had given her colleague a book about a Muslim woman’s encounter with Christianity and asked her to church. The BBC also reported that her colleague had reportedly been happy to discuss faith with her and had not given evidence about her allegations to the NHS.

Conflicting reports

The last sentence is intriguing: when two colleagues are happy to discuss religion, should an employer then suspend one of them for giving the other colleague a religious book and inviting her to church? The decision as described appeared quite strange. But I also found another article, on the website of the National Secular Society, with the headline: Born-again Christian who bullied junior NHS colleague loses appeal. This headline already suggests that there was more to the case. This article refers to the way the story was published by both the BBC and the Telegraph that gave the impression that this was about Ms Wasteney giving a religious book to a Muslim colleague. It continues that “in reality, as the ruling of the employment tribunal and initial complaint show, Ms Wasteney had engaged in a pattern of behaviour and sought to impose her religious views on a junior member of staff in a wholly inappropriate way”. The article mentions “frequent unwanted invitations to attend Ms Wasteney’s church and frequent texts and phone calls outside work. According to the employee, she had to finally block her manager on her personal mobile phone”. A totally different picture is painted. As a lawyer, I decided to look at the case itself to find out what really happened.

The junior worker characterised the various interactions as “grooming”

From the judgment, it is clear that Ms Wasteney was the Head of Forensic Occupational Therapy, while the colleague in question was an occupational therapist in her first 12 months placement post-training. The Employment Appeal Tribunal judgment makes clear that complaints had been made by the junior worker, who was of Muslim faith, against her senior manager, Ms Wasteney, who was a Christian. The junior worker characterised the various interactions as “grooming”. The actions included Ms Wasteney’s praying with the junior worker and the laying on of hands, giving a book to her (which concerned the conversion to Christianity of a Muslim woman), and inviting her to various services and events at Ms Wasteney’s church.

Blurred boundaries

Therefore, the BBC article’s assertion that “her colleague had reportedly been happy to discuss faith with her and had not given evidence about the allegations to the NHS” gives the wrong impression: it was Ms Wasteney who had claimed that the interactions were consensual and voluntary, but the employment tribunal had rejected this claim and expressly found that the employer, East London National Health Foundation Trust, took the actions it did because the colleague in question had made serious complaints (see paragraph 61 of the judgment). The employer, after receiving the complaint, had investigated the complaints under its disciplinary procedure and had found that Ms Wasteney was guilty of serious misconduct, namely the blurring of professional boundaries and the subjection of a junior colleague to improper pressure and unwanted conduct. Ms Wasteney was thus given a warning.

On appeal to the Employment Appeal Tribunal, Ms Wasteney asserted, among other claims, that she was disciplined because she was manifesting her belief in consensual interactions with the junior worker. Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms guarantees the freedom of religion, including the freedom to manifest your religion. She argued that Article 9 allowed a right to proselytise and to try to change the religion of another (see Kokkinakis v Greece [1994] 17 EHRR 397). She also mentioned the implied acceptance of religious free speech in a non-military employment context in Larissis v Greece ([1999] 27 EHRR 329).

‘Vulnerable’

However, this appears to be the wrong reading of the latter case. The European Court of Human Rights, the Court overseeing the Convention, has made a distinction between proper and improper proselytising and has held that only proper proselytising is part of the freedom to manifest your religion. In Larissis, three Greek air force officers were all members of the Pentecostal church, a church that sees it as the duty of all believers to engage in evangelism (according to the National Secular Society article, Ms Wasteney was also a Pentacostal Christian, but this was not mentioned in the judgment). The officers tried to convert airmen serving under their command, as well as civilians outside the air force. The European Court of Human Rights held that trying to convert the civilians was not improper proselytising, but trying to convert subordinates could be because the hierarchical structures in the armed forces could make it difficult for a subordinate to rebuff the approaches of an individual of superior rank or to withdraw from the situation initiated by him. If this is applied to the case of Ms Wasteney, then her actions consist of improper proselytising, considering the managerial position of Ms Wasteney and the fact that her colleague was her junior and in her first year post-training. Ms Wasteney had even accepted that the colleague in question might properly be described as “vulnerable” (paragraph 65). So, even if the Employment Appeal Tribunal had accepted this argument, it would have worked against Ms Wasteney.

Instead, the Employment Appeal Tribunal considered that the employment tribunal had concluded that Ms Wasteney was not subjected to disciplinary process or sanction 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. During the disciplinary hearing, Ms Wasteney had even accepted that her behaviour was inappropriate (paragraph 64). The employer took the actions it did because the colleague in question had made serious complaints. The Employment Appeal Tribunal was satisfied that the employment tribunal had approached its task correctly and provided a proper and adequate explanation of its reasons and thus it dismissed the appeal.

Correct decision

After reading the case, I came to the conclusion that the decision was not strange at all and that both the employment tribunal and the Employment Appeal Tribunal made the right decision. It just goes to show that cases can be represented in many different ways and that we should not believe everything we read in the media.

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Tags: BBC, belief, bullying, Christian, Christianity, colleague, discrimination, employment, employment law, european court of human rights, faith, human rights, Islam, law, media, Muslim, newspapers, NHS, nursing, religion, tribunal, unfair dismissal, Victoria Wasteney

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