21 May 2019

Some of the most challenging HR/employment law issues of the recent years have related to religious discrimination and in particular the question of whether an employee can rely on their religious beliefs as justification for refusing to follow a management instruction or otherwise carry out their job.

Such issues have been explored in a number of religious discrimination claims, and these claims have generally been unsuccessful.

For example, in the leading case of Ladele (2008), a registrar refused to conduct same-sex civil partnerships due to her Christian beliefs about homosexuality. Her discrimination claim failed, as she was dismissed not for her religious beliefs, but for the refusal to carry out a management instruction. That did not give rise, either, to any issue of indirect discrimination, as the employer had a legitimate interest in pursuing a policy of non-discrimination and not allowing any employees to opt-out of particular duties.

A number of cases have considered employees who were disciplined or dismissed for “proselytising” or evangelising – sharing their religious beliefs with others. The Claimants in the cases of Chandol and Wasteney both failed in their claims for religious discrimination, having disregarded instructions not to evangelise. “Voluntary and consensual” discussions about religion with colleagues were protected, but inappropriately sharing views with service users, or “improperly foisting” one’s religious beliefs upon service users, despite instructions to the contrary, could validly be treated as misconduct.

In the recent case of Kuteh v Dartford and Gravesham NHS Trust, the employee had agreed, following complaints, not to share her Christian views with patients unless asked by them. However, there were then a number of incidents where she initiated conversations about religion/salvation, began praying for patients, or asked them to sing a psalm. The employee was dismissed for gross misconduct.

Her employment tribunal claim was not (perhaps surprisingly) for religious discrimination, as with the cases mentioned above, but in this case, she claimed unfair dismissal. She relied on Article 9 of the European Convention on Human Rights, which provides that everyone has the right to freedom of thought, conscience and religion. This right includes freedom to manifest a religion or belief, in worship, teaching, practice and observance. As her dismissal (she argued) violated her right to evangelise, it interfered with her freedom of religion, and it must inevitably be an unfair dismissal.

The Employment Appeal Tribunal (“EAT”) noted that the European Court has already recognised a distinction between “bearing Christian witness” (which is protected as a manifestation of religious belief) and on the other hand “improper proselytism”. While that distinction was made in a discrimination case, the EAT decided it was equally applicable in an unfair dismissal claim. Here, the employer had not banned all religious discussion at work, simply requiring that the employee did not initiate such discussions with patients. Her insistence on doing so was a breach of a lawful and reasonable management instruction and as such the dismissal was fair, and did not infringe her European Convention rights.

This decision is a helpful reminder that employers are entitled to make rules which restrict the sharing of religious views in the workplace, but they should be carefully thought about and formulated, so as to minimise the risks of claims for unfair dismissal and/or religious discrimination.

For further information, please contact your usual BTO contact.

Contact: Douglas Strang, Senior Associate dst@bto.co.uk T. 0141 221 8012