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14 July 2014

Discrimination – religion or belief

A nursery manager has failed in her attempt to persuade the Employment Appeal Tribunal (EAT) that she had been subjected to unlawful discrimination because of her religion when she was dismissed from her post at a nursery in Islington (Grace v Places for Children).

Ms Grace was summarily dismissed by her employer's managing director after an investigation into allegations of unprofessional conduct found that her behaviour towards other members of staff had been inappropriate and constituted harassment. There had been complaints that she had conducted an unauthorised staff training session, had frightened a pregnant employee who had confided the contents of a dream to her into believing she would suffer a miscarriage and had scared other staff members by claiming that some event was going to occur in the nursery that would have a 'massive ripple effect'.

Four allegations of detrimental treatment because of a protected characteristic – Ms Grace's religion – were made to the ET. These were her dismissal, a complaint that she had been told that it was against company policy for her to hold Bible sessions with individuals who wished to attend, that the managing director had questioned the suitability of her engaging in discussions about God whilst at work and that she had been told that such conversations with other members of staff during break times were unsuitable.

The ET found that there was no unfavourable treatment on the ground of Ms Grace's religion. There was no evidence of opposition to groups meeting to discuss the Bible nor that her employer had a policy of restricting the times staff could discuss religious matters during their break. In the ET's view, Ms Grace 'was not treated as she was because of her religion, but rather because of the way in which she manifested or shared it'.

Ms Grace took her claim to the EAT, which dismissed her appeal. In doing so, the EAT clarified that 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 of which rights are referred to in the Code of Practice on Employment 2011, issued by the Equality and Human Rights Commission, the provisions of which must be taken into account by the ET in determining such cases. The Code states that there is not always a clear dividing line between holding a religious belief and manifesting that belief, and placing limitations on a person's right to manifest their belief can amount to unlawful discrimination. However, the facts are likely to differ from case to case and these must be examined carefully in order to reach a sustainable conclusion. In this case, the EAT could find no error of law in the ET's reasoning. Ms Grace's treatment had arisen because the way in which she had manifested her religion was inappropriate and caused upset to other members of staff.

Jo Davis, employment partner and practice group leader states that, "If an employee with strongly held religious beliefs manifests their beliefs in their conduct at work, employers should ensure that any action they take as a result has a legitimate aim and is not simply an objection to the belief itself. We can advise you to ensure any action you take complies with the applicable law."

For further advice or information please call Jo on 01753 279029 or email employmentlaw@bpcollins.co.uk

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