Latest on Religion and The Workplace
The Court of Appeal has once again had the chance to grapple with the thorny issue of employees bringing their religion to work in the recent case of Kuteh v Dartford and Gravesham NHS Trust .
Ms Kuteh was an oncology nurse and her role involved pre-operative preparation and assessment. She was also an evangelical Christian and there was evidence that she took this opportunity to proselytise to the patients. After concerns were raised by patients, she was given a direct instruction to stop initiating conversations about religion, and agreed to refrain from doing so. However, there were then further instances and she was summarily dismissed.
Surprisingly, the claim was not brought as a religious discrimination claim, but only as an unfair dismissal claim. Much weight was placed by the claimant on Article 9 of the European Convention on Human Rights (which provides a right to freedom of thought, conscience and religion). Drawing on previous authorities, the court in this case drew a line between appropriate ‘manifestation’ of religious beliefs and ‘improper proselytising’. Given the facts of the case (and, perhaps, the setting of the employment) there appears to have been little hesitation in determining that Ms Kuteh’s conduct fell on the wrong side of the line.
An expected outcome
This outcome is far from unexpected. There are some immediate and obvious pointers to take away, none of them should come as a surprise, but they are worth a reminder:
- It is okay to challenge employees who ‘bring their religion to work’ in an overt and disruptive way. Obviously, this should be done sensitively and carefully. Take advice sooner rather than later.
- It was key in Kuteh that the employer had issued an express instruction for the behaviour to stop and that this had been breached. Laying the groundwork is vital (and in other instances the formality of the express instruction would likely have been enough to solve the problem).
- Always consider why the activity is causing a problem in the context of your organisation. The concern over vulnerable patients being subjected to religious pressure is obvious in this example, but identifying a genuine problem is important to avoid the sort of over-reaction which might give rise to a more meritorious claim.
- Although not an issue in the Kuteh case, one of the common scenarios which gives rise to claims is where there is a clash of beliefs. Often (although not always) this relates to the views a religious employee may hold on homosexuality. We’ve discussed this in one of our Tea Break videos. If you’d like to have a look, you’ll find it here.
Accommodating all faiths
As well as the case of the overly-enthusiastic religious employee, employers also have to consider how best to accommodate the needs of practising adherents of various faiths. Recently, many employers will have been supporting Muslim employees fasting during the month of Ramadan (a religious obligation which is particularly challenging in the UK when, like this year, it falls during late spring or early summer with long hours of daylight). Employers may also be familiar with requests to adapt working hours (for example to allow Jewish employees to refrain from work on the Sabbath) and to permit employees to wear religious dress or symbols of their faith. Generally in these matters a little common sense goes a long way and disputes leading to claims are relatively few and far between. If, however, a particular issue does seem to be problematic, it is worth getting early advice as positions can become very entrenched where people feel their core beliefs are being threatened or disregarded.
Different issues can arise when you have a workplace which itself has a specific religious dimension – a faith school, a faith-based charity or even a religious organisation itself. There is clear authority (including at European level) that the circumstances in which you can make employment decisions based on religion are extremely limited. But it may well be that case that an employee whose views don’t ‘fit in’ may nevertheless experience tension and perhaps (rightly or wrongly) perceive that others are prejudiced against them.
Psychologists will tell us that diversity in all forms is healthy for any organisation – allowing the corporate entity to avoid ‘group think’ and benefit from a plurality of views. Having an organisation of very like-minded individuals is, of course, not against the law. But it can lead to an environment where ‘banter’ against a perceived outside group (whether that is individuals who hold or do not hold particular religion views, or is based on a different sort of belief, such Trump supporters, Remainers or vegans) is more likely to be condoned and may get out of control.
Given the rising temperature of public debate on a whole range of belief-based issues, perhaps now is a good time for organisations to consider the profile of employee beliefs in their own organisation, identify any potential flashpoints and consider what can be done to mitigate any risk. Training on avoiding discrimination and related topics can help make the workplace a welcoming environment for everyone, as well as potentially providing a defence to future claims.