20 March 2014
Manifesting your religion can be tricky and costly
A recent decision by an employment appeals tribunal which found that an employer had not discriminated against the claimant because of her religion or belief is of particular interest.
In the case of Grace v Places for Children [UKEAT/0217/13/GE] the first employment tribunal decided that the claimant had behaved inappropriately and unprofessionally in the way she manifested her religious beliefs.
The tribunal dismissed the claim that the claimant had been discriminated against because of her religion. It decided that the claimant was not dismissed from her job because of her religion but rather because of the way in which she manifested or shared it. Accordingly, her treatment did not constitute direct discrimination because of her religion.
When the claimant appealed, the employment appeals tribunal dismissed the appeal finding on the basis of established facts that the claimant was not dismissed or treated less favourably because of her religion. It is notable, however, that the appeals tribunal did specifically uphold the January 2013 findings of the Strasbourg court in the case of Eweida and other v UK that there is no clear dividing line between holding and manifesting a religious belief. In that landmark case, the European Court of Human Rights was concerned to establish that a fair balance must be struck in any limiting of an individual's right to manifest their religious beliefs. Both the expression of beliefs as well as the beliefs themselves deserve protection.
Employers were consequently advised to take especial care in future when balancing their needs against those of their employees in issues concerning how an employee manifests his or her religious beliefs in the workplace. Employers were recommended to revisit policies, such as uniform/dress codes and to reconsider justification of practices which might prevent employees manifesting their religious beliefs. They were further advised to give careful consideration to requests from employees where manifestation of religious beliefs could be affected – for example, in changes to working hours.
In the present case, the claimant was employed as a nursery manager at her employer's Islington Nursery. However, in November 2011 she was summarily dismissed. The reasons stated in her dismissal letter were that:
- The claimant had held an unauthorised training session for staff members, which gave rise to complaints by some of those who attended it.
- As a result of the claimant's reaction to a pregnant staff member's revelation of the contents of a dream to her, the staff member had gone away extremely scared, believing she would suffer a miscarriage.
- The claimant told a member of staff that something was going to happen in the nursery which would have a massive ripple effect which left staff members uneasy and scared.
The claimant's behaviour was deemed by her employer to have been unprofessional, inappropriate and harassing in nature. This resulted in damage to management's trust and confidence in the employee and she was consequently dismissed for gross misconduct.
In response, the claimant claimed that she had been subjected to unlawful discrimination because of a protected characteristic, her religion, and sought compensation. She alleged that she had been told that it was not company policy for the claimant to hold Bible sessions with individuals who had consented to it and that it was inappropriate to conduct discussions with other staff members about God in the workplace
The first employment tribunal found that the employer had stated that employers were under a duty to afford a time and place for individuals to pray but not facilitate group prayer sessions. However, they had not stated - as the claimant claimed - that they were opposed to groups meeting to discuss the Bible. It also found that the employers did not have a policy of restricting the times when staff could discuss religious matters during their break. They therefore found that there was consequently no unfavourable or different treatment because of the claimant's religion.
The tribunal also concluded that the employer was justified in deciding that the claimant's actions blurred the boundaries between the claimant's work and matters which were not work-related and had an adverse effect on the well-being of staff. The tribunal did comment on the lack of warning before dismissal about the claimant's behaviour and the lack of an opportunity for her to correct it, though this would only have been relevant if there had been a valid claim for unfair dismissal.
What is of particular interest is the conclusion of the employment tribunal, upheld by the employment appeals tribunal, which stated: "We conclude, as did the tribunal in the case of Chondol, that the Claimant in this matter was not treated as she was because of her religion, but rather because of the way in which she manifested or shared it. This indeed was the Claimant's own conclusion. She agreed that she would have been treated in the same way regardless of her particular religion or had she had no religion at all. This cannot therefore constitute direct discrimination because of her religion and in the circumstances the claim fails."
The reference to Chondol was a reference to Chondol v Liverpool CC  UKEAT 0298/08/1102. Mr Chondol was a social worker and a committed Christian. He was dismissed because, in the Employment Tribunal's words, he had 'improperly foisted his Christian beliefs on service users'.
It is not lawful to draw a distinction in principle between holding a religious belief and manifesting it. Article 9 of the European Convention on Human Rights recognises both the absolute right to religious freedom and the qualified right to manifest religion. Both rights are referred to in paragraphs 2.50 to 2.61 of the guidance given in the Code of Practice on Employment 2011 issued by the Equality and Human Rights Commission. An Employment Tribunal must take into account the provisions of that code in any case in which it appears to the Employment Tribunal to be relevant (see the Equality Act 2010, section 15(4)). Paragraph 2.61 of the Code states:
"There is not always a clear line between holding a religion or belief and the manifestation of that religion or belief. Placing limitations on a person's right to manifest their religion or belief may amount to unlawful discrimination; this would usually amount to indirect discrimination."
The appeals tribunal noted the very carefully worded summary of the original tribunal: "...the Claimant in this matter was not treated as she was because of her religion but rather because of the way in which she manifested or shared it."
Effectively it was found that the claimant had manifested her religion in a way which was considered to be inappropriate and which upset members of staff. So the tribunal decided her dismissal was not for an impermissible reason and she was not subjected to less favourable treatment for an impermissible reason.
Of course, the decision about what is appropriate and inappropriate may be a highly subjective one and one employer may judge appropriateness in a completely different way than another. This seems to be an area in which future conflict and confusion is likely and it will be important to monitor closely future cases to check whether employers might unfairly exploit the question of what is or is not an appropriate way in which to share one's faith in the workplace, perhaps as a way of compensating for the overturn in Strasbourg of the previous increasingly accepted practice to drive a wedge between holding a religion and manifesting it. For example, is it appropriate for an employer to insist that prayer must only be allowed for individuals rather than for groups? Should it be merely the judgement of an employer that staff are adversely affected by the way in which an employee manifests her faith?
It should be noted that such employment tribunal decisions remain highly context and fact sensitive. Cases may involve significant complexities for employers. In this present case the facts were readily distinguishable even though disputed. Establishing facts is clearly a crucial aspect of cases like this where disputes about who said what are common. It appears that verbatim quotes are important in offering evidence as opposed to, for example, interpreting the gist of conversations. Employers and employees are well advised to record details including witness statements as near to the event as possible in anticipation of potential future claims. All facts in cases of a similar nature are likely to differ from other cases so it can be difficult to draw firm conclusions from one specific case. Each individual case will require assessment on its own merits. What tribunals will look for are careful evidence-based examination of the facts and the reaching of sustainable conclusions based upon those facts.
What is also clear is that future tribunals are likely to inquire into and take account of the extent to which manifestation of a religious belief is carried out in an 'appropriate' or 'inappropriate' way. Raising religious matters in a work environment is one thing, but if the ways in which it is done could be regarded as harassing other members of staff or foisting of religious views on unwilling recipients in a way that employers reasonably consider might impact them adversely then tribunals are unlikely to be sympathetic. Christians might well bear in mind the scriptural injunction to be 'wise as serpents and harmless as doves' whilst refusing to be silenced or intimidated by hostility in their endeavours to preach the gospel in the workplace (Matthew 10:16).
Don Horrocks, head of public affairs.