Sending a prayer to colleagues shouldn’t be a sackable offence. If we have freedom of religious expression what use is it if we are told we can only exercise it in private? Freedom of religion and freedom of expression have to include a public dimension if the freedoms are to be substantive.
But does the public expression of belief require that workplaces accommodate it in all its forms? Probably not.
While religious freedom should allow for religious expression within the workplace, that doesn’t mean it should in all its forms. The two cases of Shirley Chaplin and Nadia Eweida provide a helpful illustration, they both complained at their employers’ restrictions on wearing a religious symbol, in the first case the restriction was considered legitimate due to health and safety concerns (and reasonable alternatives offered), in the latter it was not because only due to a uniform code.
There are actions on the part of an employer which are undue restrictions on religious liberty, and there are actions from employees which may restrict religious liberty, but which may also be justified. The challenge when assessing cases such as these, and Dr Drew’s is the most recent such case, is to work out which side of the line they sit.
The case of Dr Drew and Walsall NHS Trust is more complicated than simply deciding where it sits on a spectrum of fair and unfair interference with religious liberty. In fact, the case doesn’t get into the details of where or how it engages Article 9 of the European Convention of Human Rights. This is because it is a very confused case. The problem arose from a complaint which was investigated, and taken through various rounds of internal processes, an independent review, a disciplinary process, a termination of employment and an employment tribunal before it reached its current stage at the employment appeal tribunal (EAT). The initial complaint, which did have a religious dimension, Dr Drew circulated an email including a prayer, became lost under a wider breakdown of employment relations, and at one point the EAT concludes that he shared confidential information by forwarding on an email, which was gross misconduct in and of itself. Therefore, from my lay reading, it seems reasonable that he was sacked, but he wasn’t sacked for sending an email which contained a prayer.
The sticking point is that the situation escalated because Dr Drew would not accept the recommendations of the independent review panel in their entirety. In particular he took issue from the instruction to refrain from use of religious references in his professional communications. He questioned this requirement and asked for an explanation of how it would work in practice because the English language is replete with metaphor and allegory, much of which is derived from the Bible. It was Dr Drew’s failure and unwillingness to comply with the review’s recommendations that ultimately led to his dismissal, and the main reason he wouldn’t was because he was being asked to not speak about his religious beliefs.
Therefore, although the case can and was dealt with largely without engaging a substantive consideration of whether his religious expression was constrained, it has at its heart the actions of an employer seeking to constrain religious expression, and whether this restriction was valid does not seem to have been adequately considered by the court.
This is a poor case, it seems relationships had broken down, both sides come across as antagonistic and seeking out a dispute rather than a resolution.
But I am concerned that an employer can ask an employee to refrain from using religious language. The case discusses in some detail what the appropriate comparator is to decide whether doing this and acting on Dr Drew’s failure to comply is religious discrimination. The comparator, both the original tribunal and the EAT agreed was another person with a different religious belief or no religious belief being asked not to send texts important to their system of belief or non-belief. The problem is that this creates a barrier between religious beliefs and non-religious beliefs, for example, would an employee be reprimanded for sending poetry to other staff? If you do not follow a religious system of belief you do not have a text or source of texts that can so simply be considered.
The requirement not to use religious references disadvantages those with a religious system of belief over those who do not have one at all or hold only very lightly to one. Therefore, while perhaps not pertinent to the eventual outcome of this case is still a matter of concern. A all encompassing request to not use religious references is secularism writ large, and writ large in a pernicious form. It is a pity it got lost beneath this case.
FURTHER READING: Summary from Law & Religion blog, and the full EAT judgement.
