Butt v Airedale NHS Foundation Trust | Consensus HR | Herts Beds, UK
Latest blog – Case Law:
Summary:
Just because an employee has a protected characteristic, this doesn’t mean that everything that happens to them in the workplace is because of that characteristic.
Facts:
The claimant was employed as an ophthalmic surgeon by the respondent. As part of the respondent’s mandatory infection prevention and control policy, all staff entering or working within clinical areas and/or providing direct patient care are required to be bare below the elbows. The policy also states that it recognises the specific needs of staff on cultural, religious or disability grounds and that disposable sleeves are available. Under this policy, staff are also required to have short nails.
The claimant was supervising a junior colleague and left the operating theatre to use their mobile phone. In doing so, they walked through an anaesthetic room and into a corridor from which a number of operating theatres are accessible. As they were walking, they rolled their sleeves down. As a Muslim, the claimant wore a hijab which left only their face, hands and feet visible whilst in public.
Once in the corridor, the claimant encountered the respondent’s Divisional Director of Nursing for Surgery and Diagnostics, who asked the claimant why their sleeves were not rolled up. It was also noticed that the claimant’s nails were in contravention of the above policy. The claimant alleged that at this point the director began shouting, despite the fact that they had, according to the claimant, explained that it was because they were now in the corridor and they did not consider that part of a clinical area. On the director’s part, they felt that it was and therefore the policy should apply.
By all accounts, the altercation became heated although witnesses to the event and the claimant disagree on what actually happened. The evidence suggests there was significant disagreement on this matter. As a result of this altercation, the claimant left work early as they were so upset by what had happened.
The claimant later raised a formal complaint that the behaviour of the director was racially motivated, and that they had been racially profiled and bullied. This was investigated by the NHS Trust and not upheld – it was found that the request was made to ensure adherence to hospital policy, and not racially motivated. It was however acknowledged that the situation escalated and that this was disappointing.
The claimant brought claims for direct discrimination and harassment on the grounds of religion or belief.
Note for employers
This case is a reminder to employers that not everything that happens to a person with a particular protected characteristic (in this case, religion) will be because of that characteristic. Instead, a thorough examination needs to take place of the circumstances of the case. Where there is a genuine reason for the behaviour in question that doesn’t relate to the protected characteristic – in this case, it was to ensure the employer’s policies were adhered to – it is not an act of discrimination or harassment, even if the individual who has the protected characteristic is upset by the behaviour.
Law:
Under the Equality Act 2010, direct discrimination is prohibited on various protected grounds, including religion. Direct discrimination happens when “A treats B less favourably than A treats or would treat others”.
When an ET is asked to consider a question of direct discrimination there are three questions it must ask itself:
- Was there less favourable treatment?
- Would a comparator without the protected characteristic have been treated the same in circumstances that were not materially different; and
- Was the treatment ‘because of’ a protected characteristic?
Harassment is defined in section 26 of the Equality Act 2010, and it arises where unwanted conduct takes places that has the purpose or effect of violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B. When deciding if this has happened, the ET must consider:
- Was the conduct complained of unwanted?
- Was it related to religion; and
- Did it have the purpose or effect outlined in section 26?
Employment Tribunal (ET):
Note that as an employment tribunal case, this is not binding authority. ET cases may be persuasive on other tribunal decisions, but unlike those courts higher in the system (EAT, CoA, Supreme Court), they do not have to be followed by other courts and therefore the outcome is only indicative of how a similar case might be treated.
In their evidence, the director admitted that they may have unconscious bias against Muslims. The claimant argued that therefore of this admission, and the fact the director knew the claimant was a Muslim, this should lead the ET to conclude that the their treatment was related to religion.
In response to this point, the ET commended the director’s honesty. Everyone has unconscious biases, the ET went on, and where potential unconscious biases are not recognised or it is not willingly acknowledged that they might be present, it is more likely that they will influence decisions and actions. Instead, the ET found that what drove the director to speak to the claimant on the day in question was because they genuinely believed that the claimant was in breach of the respondent’s policies, and that this escalated because of the claimant’s reaction.
The ET found that as the director had challenged others on this same point, the claimant was not singled out because of religion. This was because (according to the ET) “not everything that happens in the workplace to a Muslim worker will be related to religion”. This finding was supported by the fact the claimant admitted that religion was not discussed during the altercation, nor was it given as a reason for the claimant to have their sleeves down – on the day, the claimant said that it was because they believed they were in a non-clinical area of the hospital.
Overall, whilst the ET held that both parties did not handle the altercation well, the reason for the director’s behaviour was because they wanted the claimant to comply with the policy. Therefore, it could be neither harassment nor direct discrimination, as the treatment was not ‘because of’ the claimant’s religion. The claimant, therefore, lost all their claims.
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