Drew v Walsall Healthcare NHS Trust: EAT 20 Sep 2013

EAT Religion or Belief Discrimination : UNFAIR DISMISSAL – Reasonableness of dismissal
The Appellant was dismissed from his employment as a paediatric consultant. He worked in a multicultural and multi-faith department. Problems within the department arose because the Appellant habitually used Christian references in his professional communications. An internal investigation made a recommendation, among others, that he should keep his personal views and religious beliefs to himself and should not impose them on others. The Appellant did not accept the recommendation and took out a grievance. It was agreed that the Loyal College should carry out an independent review; the College appointed a panel of 2 consultants and an HR practitioner. The panel, after investigation, produced a report which made a number of recommendations; one of them was that the Appellant should refrain from any religious references in his professional communications.
All the relevant staff accepted the panel’s recommendations, except the Appellant who refused to accept the recommendation set out above and maintained that position when a 3rd investigation, carried out by an independent HR consultant advised disciplinary proceedings, which were carried out and led to the Appellant’s dismissal.
The Appellant claimed that he had been discriminated against on religious grounds in 14 respects, had been victimized and had been unfairly dismissed. The Employment Tribunal rejected his claims.
On appeal multiple grounds were argued; all failed. The ET had correctly directed themselves to follow the guidance given by the EAT in Ladele (2009 IRLR 154) and had correctly applied that guidance. They had identified correctly a hypothetical comparator (having rejected the Appellant’s actual comparator, a conclusion which was not attacked on appeal) as someone whose relevant circumstances were the same as those of the Appellant save for his protected characteristic, described by the Appellant as that of being an ‘orthodox Christian’, and who acted as the Appellant had done but used terms relating to his own religious belief system or non-religious or atheist belief system and were entitled to conclude that such a comparator would have been treated in the same way. Much of the appeal was or amounted to arguments of perversity; but the ET had reached factual conclusions which it was open to then to reach. The ET’s conclusions on all claims were not based on error of law.

Jeffrey Burke QC
[2013] UKEAT 0378 – 12 – 2009
England and Wales

Employment, Discrimination

Updated: 20 November 2021; Ref: scu.515406