Organisations are running significant risks if they shy away from tackling inflammatory situations relating to religion in the workplace, according to employment lawyers who have warned of a potential growth in contentious – and expensive – cases.
At a seminar in London, experts from Winckworth Sherwood suggested that a rise in high-profile discrimination and harassment cases around religion and employment could be partly attributed to the increased difficulty of bringing unfair dismissal cases since the remit for tribunal claims changed in 2012.
“Because of the two-year qualifying period for unfair dismissal claims, people are becoming more creative in the cases they will bring,” said Eleanor Gilbert, senior associate at Winckworth Sherwood. “There were a lot more unfair dismissal cases a few years ago – and now, of course, we also have a cap on compensation for unfair dismissal.” People are also more likely to pursue cases related to religion through successive appeals – and take them to the High Court or European courts – because the topic is so emotive and inherently personal, she suggested.
The most contentious scenarios often relate to clashes between employees with different viewpoints, with homosexuality a particular flashpoint. “We see a lot of reported cases where two protected characteristics come into conflict,” said Winckworth Sherwood associate Timothy Goodwin. “It can be a balancing act, but it’s important to think about the scenarios in a consistent manner.”
Certain rules of thumb could help, he added: “Firstly, think about what is being disciplined. Is it conduct – which it’s fine to discipline – or the protected characteristic, where you are more likely to run into trouble?”
This distinction is crucial, he said – and he used two recent high-profile cases to illustrate it. In Mbuyi v Newpark Childcare, an evangelical Christian had told a homosexual colleague (known as LP) that she regarded homosexuality as a sin. She was disciplined and dismissed for gross misconduct as she had acted in a discriminatory way and had been guilty of harassment.
A tribunal later found the dismissal was unfair. “Critically, what the tribunal noted – and the employer knew [at the time] – was that LP had encouraged the debate and asked Mbuyi for her views on homosexuality.” In knowing that and failing to follow it up, the employer had failed conduct a proper investigation, in essence punishing Mbuyi for her beliefs rather than her conduct.
The tribunal also found that her views did not constitute harassment, though Goodwin cautioned that even if an employee was in the first instance invited to offer an opinion – or asked about their religion – that should not be taken to mean that the resulting conversation could not be so offensive and discriminatory that it did not constitute harassment.
Goodwin contrasted this case with the more recent Wasteney v East London NHS Foundation Trust, which concerned a Christian employee accused of ‘grooming’ a Muslim colleague by offering her a book on converting to Christianity and praying for her, among other actions.
She was disciplined and given a final written warning – downgraded on appeal to a first written warning – but took the case to tribunal and subsequently the Employment Appeal Tribunal, both of which ruled there was no discrimination involved and the employer’s actions were reasonable and proportionate.
Goodwin suggested that this was because the employer had investigated and taken action as soon as Wasteney’s actions were reported – which first occurred in 2011 – and had focused on her behaviours rather than her beliefs.
Other flashpoints arise from the requirement to perform services employees believe contradict their religious beliefs. Recent cases have concerned religious members of staff being asked to marry or offer counselling to same-sex couples: Goodwin pointed out that two recent cases, including the Court of Appeal’s rejection of a claim by a Relate counsellor who was dismissed for refusing to work with gay couples, suggested it was not necessary to accommodate religious views where an employer had a clear aim to provide non-discriminatory services.
When it comes to religious dress at work, the issue of proportionality is crucial. While the case of a British Airways worker who won an appeal against a ban on wearing a crucifix has raised many questions, Goodwin noted the equal significance of Chaplin v Royal Devon & Exeter NHS Foundation Trust, where the employer had shown there were clear operational and health and safety reasons for its dress policy. Proving your policies were consistent and proportionate would carry more weight with the courts, he said.
Overall, said Goodwin, focusing on conduct as distinct from beliefs is the safest way to ensure you are handling an issue correctly, and managers should be trained in this area. It is also important to remember that the potential for offence or discrimination does not only fall on religious employees – it is possible that a non-religious worker could say something highly offensive to someone else’s beliefs.
Gilbert suggested that guides to reasonable conduct should explicitly cover the issue of workplace debates: “It’s important that they make the distinction between what’s a reasonable discussion and what might cause offence.” Giving clear, hypothetical examples would help employees understand the issues, she said – but it is important that they know it is ok to discuss topics such as religion, as long as they respect the boundaries of reasonable conversation.
First Floor Offices, 11-23 Market St.
Tel: 01427 678660
HR and Accounts:
26/26a Hickman Street
Tel: 01427 678660
West 1, West Dock Street
Hull HU3 4HH
Tel: 01482 534 348
Hyde Park House, Cartwright Street
Newton, Hyde, Cheshire SK14 4EH
Tel: 0161 367 1214
2450 Regents Court The Crescent
Birmingham Business Park Solihull B37 7YE
Tel: 0121 69 59 290
4th Floor, 86-90 Paul Street
London EC2A 4NE
Tel: 0207 111 0958
Copyright © 2017 Stallard Kane Associates. All rights reserved.