Thursday, September 26, 2013

Christian Not Sacked for Sending Religious Emails

The Employment Appeal Tribunal has handed down Judgment in a case where there has been some media reporting locally to the effect that "a Doctor had been sacked for sending colleagues religious emails." Viewers were invited to telephone BBC Midlands Today last night to say whether they thought that this was fair.

In actual fact (as tends to be the case in a lot of religious discrimination cases) the details of the case were considerably more nuanced than that. Dr Drew worked as a paediatrician for Walsall Healthcare NHS Trust. By all accounts he was very good at the job. However there appear to have been issues over how he interacted with his colleagues. One (but by no means the only, or possibly as far as his colleagues were concerned the main) issue which arose was that on occasions he included religious references in emails. He is a practising Christian. The Head of Nursing raised a grievance about him, and he did likewise about her.

Whilst the grievance was not against Dr Drew was not upheld a number of recommendations were made which included concern about his style of communication. This was not solely about the religious content - there appears to have been concern about him sending very lengthy communications in what was considered to be an inappropriate tone and copying in large numbers of recipients. Certain colleagues appeared to perceive that he was constantly criticising the service and undermining them. Dr Drew raised a further grievance which included concerns about the recommendations and in particular took exception to the suggestion that he should keep his personal religious beliefs out of his dealings with colleagues.

This grievance was referred to an independent review panel. In the meantime Dr Drew continued to challenge the recommendations. The panel found that some of the things which had happened to Dr Drew had been inappropriate but agreed that his use of religious language was not appropriate. It also criticised his communication style more generally saying this was undermining the service and damaging the relationships with his colleagues. It made a series of recommendations which included that he should stop communicating in the way he did, apologise for the impact his communications had had and desist from undermining the Trust by raising issues in the media rather than resolving them internally.

Whilst there was a recommendation that he refrain from using religious references in communications this was a very small part of the overall report. Dr Drew was not prepared to accept the recommendations without qualification. He raised a series of objections - not just to the request not to use religious language. He was invited to accept the report without any caveats, as all of his colleagues had been prepared to do. He refused to agree to this and disciplinary action was taken. The basis of this was that he was failing to comply with reasonable management instructions to resolve the issues between him and his colleagues.

Following a disciplinary hearing he was dismissed. This was not, as has been suggested, purely because he emailed an innocuous prayer to colleagues. It was because he would not accept the report, and also because he was found to have breached confidentiality by distributing correspondence to individuals despite express instructions not to do so.

He brought proceedings for Unfair Dismissal, religious discrimination and victimisation. The Employment Tribunal rejected these quite some time ago (which makes some of the reporting very odd, as they seem to misunderstand the distinction between the Employment Tribunal and the EAT.) He appealed against the dismissal of his claims.

The EAT rejected his appeal. The details of the appeal are not actually that interesting - in effect he was trying to re-argue his case on appeal when the EAT only has jurisdiction to consider errors of law or decisions that are so obviously wrong as to be perverse - and the EAT does not appear to have been overly impressed by the majority of arguments on his behalf.

Why the case is worth looking at (if you are into that sort of thing) is because it is another example of a case that is portrayed in the media as evidence of persecution of Christians in the workplace that proves to be nothing of the sort on closer inspection. As the EAT pointed out, anyone of any persuasion who had behaved as Dr Drew did in respect of their particular beliefs would, it was found by the Employment Tribunal, have been treated the same way.

The BBC report also raised the fact that the EAT Judgment did not deal with the whistle-blowing aspects of the case. This was no doubt because they were not amongst Dr Drew's grounds of appeal!

Wednesday, September 18, 2013

EDL Service Refusal - Free Meal But No Sacking

The BBC reports that a Selfridges employee who refused to serve a customer because they were with the English Defence League Leader "Tommy Robinson" (not his real name)will not face any further action. The employee was initially suspended for breaching company policy. The identity/ethnic background of the employee is not apparent. Failure to obey a lawful management instruction would potentially be gross misconduct leaving an employee at the risk of being fairly dismissed without notice. Even in the absence of an express policy a shop worker who refuses to serve a particular customer because they found something objectionable about the customer would have to be very careful. Such conduct could be argued to bring the employer into disrepute, especially if the customer was not doing anything wrong - if e.g. you refuse to serve someone who is swearing in your face that would of course be a different "kettle of fish." The legal test for a fair misconduct dismissal is whether dismissal is "within the range of reasonable responses" - i.e. is it possible a reasonable employer might dismiss? As different employers will have a different attitude to this sort of situation whilst many may have sympathy with an employee taking a principled stance a Tribunal could easily find that dismissal was within that range, given that the Tribunal cannot substitute its own view. Considerations would include the reason for refusal to serve, whether the employee was rude to the customer, length of service and previous disciplinary record. It is not unlawful to discriminate against a customer on grounds of political affiliation,although it is potentially unlawful to dismiss an employee on these grounds. However an employee who refused to serve someone because of a "protected characteristic" (race, gender, religion, age,disability, sexual orientation etc) would be doing something unlawful and any such conduct would almost certainly amount to gross misconduct justifying a summary dismissal. "Mr Robinson" and his companion were apparently given a free meal by Selfridges by way of an apology, a response which has itself attracted some criticism.