A young occupational therapist, in her first post-training placement at an NHS Trust, complained about a more senior colleague. There were various reasons behind this complaint, including that this senior colleague gave her a book about converting to Christianity, told her that her Crohn’s disease did not exist because it is not mentioned in the Bible, repeatedly invited her to church events and laid hands on her whilst praying over her.

The allegations were phrased a little more blandly in the formal disciplinary complaint and did not mention the statement about Crohn’s disease, but the employer essentially upheld the allegations. The senior employee also accepted that she made a bad judgment call and had acted inappropriately.

It sounds rather unpleasant. Acting in an oppressive manner towards a junior colleague cannot be right. The NHS Trust gave the senior employee a final written warning. The senior employee appealed in line with the internal NHS Trust complaints process and the outcome was reduced to a first written warning. While the internal investigation by the NHS Trust was on-going, the senior employee was suspended on the basis that this was felt necessary to preserve the integrity of the investigation.

What happened next was that the unhappy senior colleague complained to an employment tribunal, accusing the NHS Trust of direct and indirect religious discrimination and harassment. She claimed that the NHS Trust's actions had breached her right to religious freedom under Article 9 of the European Convention on Human Rights. The tribunal, and following that the Employment Appeal Tribunal, dismissed her claim. Both tribunals agreed that the NHS Trust was right to take this matter very seriously. From a technical legal perspective, the crux of the tribunal’s decision was that the senior employee was not given a warning because of her beliefs or how she expressed them. Instead, she was disciplined for misusing her power and subjecting a more junior colleague to unwanted and inappropriate conduct.

If the NHS Trust had not taken any disciplinary action in response to the junior employee’s complaint, it would have risked a legitimate challenge by that junior employee for failing to stop her being harassed. Whilst the cause of the harassment was the senior colleague’s behaviour, the law can also hold an employer vicariously liable for its employee’s unlawful behaviour, especially if that employer knowingly chooses not to stop or prevent it. In fact, there are other pieces of legislation that the junior employee could have used against the NHS Trust had it not acted as it did.

Some media sources have reported the case quite differently. They focused on the giving of the book, ignoring the other conduct – a warning for that does seem over the top. They also gave the impression that the suspension of the senior colleague was itself punishment. Suspension of any employee should always be a neutral act, though it might feel like punishment to an employee on the receiving end. Employers considering the need for this measure should be prepared for it to potentially inflame a situation and it may well be wise to seek legal advice before imposing it.

In business there will be difficult decisions to make. Being an employer brings with it responsibilities. We understand that. In this situation, like many others, different employees had competing views and interests and often both sides will describe the ‘facts' quite differently. A reasonable investigation was necessary and the NHS Trust had to make a judgment call. They did the right thing and most importantly, they took it seriously.

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