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Onuoha v Croydon Health Services NHS Trust: Unfair Dismissal, Discrimination, Breach of Human Rights, and more!

This recent decision of EJ Dyal from October 2021 concerned whether the Claimant, a Christian nurse employed by the Respondent, was constructively unfairly dismissed for refusing to take off her crucifix necklace.

Evidently, the wearing of a crucifix necklace or any other piece of religious clothing/item does not amount to one of the potentially fair reasons for dismissal! 

The Claimant brought her claims against the Respondent for constructive unfair dismissal (CUD), direct religious discrimination, harassment, victimisation, and indirect religious discrimination. She further alleged that her treatment amounted to a breach of her human rights contained within Art.9 ECHR (the right to manifest religious beliefs).

Background

Mrs Onuoha was employed by the Trust since 2001, and the Tribunal heard that she had worn her crucifix without issue for the first 13 or 14 years of her employment. In 2014, however, she was asked to remove the necklace, and refused, contrary to a policy the Respondent held which prohibited the wearing of necklaces in clinical areas due to risk of infection and safety. The request was repeated in 2015 and in 2016 and again, each time, the Claimant refused to remove her necklace. No further action was taken.

In 2018, the Respondent was criticised for failing to enforce its Dress Code and Uniform Policy. As a result, the Respondent attempted to ‘crack down’ on the wearing of necklaces, which they said had become rife. One such example of this approach was in the treatment of the Claimant. 

The dispute eventually led to grievance and disciplinary procedures, and, after being threatened with a second disciplinary procedure, the Claimant resigned from her post, and submitted her application to the Tribunal as set out above.

Claims

Mrs Onuoha was successful on the majority of her claims. 

Art.9 ECHR

The Tribunal had no difficulty concluding that the Claimant wearing her cross necklace was a manifestation of a religion belief under the ECHR. The Respondent relied upon the health and safety of staff and patients to qualify that right and, in particular, to argue that the Claimant should have adhered to their policy in that regard. 

The Respondent offered the Claimant some alternatives to allay the perceived safety risks - either to wear the cross hidden beneath the Claimant’s shirt, to wear cross stud earrings in place of the necklace, or to have the cross embroidered on the uniform. The latter suggestion was only canvassed in evidence before the Tribunal and never offered to the Claimant before the hearing. 

Controversially, the Respondent’s policy did permit the wearing of Kalava bracelets, religious head coverings and neckties, which were strongly discouraged in clinical areas but would not be in breach of the policy. The Tribunal held that “there was no cogent explanation as to why these items are permitted but a fine necklace with a small pendant of religious devotional significance is not” [271].

The Tribunal found in relation to this claim that [279]:

  1. The difference of treatment between the cross necklace and the other items described above was arbitrary;
  2. The difference of treatment between the treatment of the Claimant wearing her necklace and others whose jewellery-wearing breached the policy by was tolerated was also arbitrary; and,
  3. The Respondent did not come close to striking a fair balance as required to justify an interference with the Claimant’s Art.9 rights. The infringement was therefore not justified.

Direct discrimination and harassment

The Tribunal applied the approach to s.13 in manifestation of belief cases as set out in Page v NHS Trust Development Authority [2021] EWCA Civ 255, and held that the requirement for the Claimant to remove her necklace was directly discriminatory [281-282]. The wearing of the cross necklace was not something which the Tribunal considered could be justifiably objected to by the Respondent [282.3].

In this case the Tribunal did not consider that an analysis of comparators was necessary, but that a relevant comparison could be made between the Claimant and an employee wearing a headscarf, turban, kalava bracelet, or tie. 

The Tribunal also considered whether this was a case in which those managing the Claimant had a particular problem with the Cross or some conscious or subconscious prejudice towards the Christian faith. The Tribunal was split. EJ Dyal did not feel that the managers were prejudiced, and, instead, understood themselves to be following the uniform policy. It was noted that the policy itself did permit the reasonable accommodations of religious items.

Constructive discriminatory dismissal / unfair dismissal

The Tribunal agreed, having made a number of findings against the Respondent as to their conduct and treatment of the Claimant, that the Claimant was constructively dismissed and that the Respondent did not have reasonable or proper cause for its conduct [389]. 

The failure of the Respondent to investigate the Claimant’s allegation that many other employees were wearing jewellery in clinical areas with impunity, and dismissed the Claimant in circumstances were they ought to have known many other clinicians were doing the same. The Tribunal held that this was sufficient for the dismissal to be an unfair dismissal [417-418]

Victimisation

The Claimant alleged that she was victimised by the Respondent following submission of her grievance. The Tribunal held that the Claimant did suffer the detriments that she alleged, namely, that she was redeployed to non-clinical duties from November 2018.

Various redeployments appear to have occurred. The Tribunal held that, in one of these cases, the Claimant’s redeployment was linked to her protected act in raising a grievance [392].

Indirect discrimination

The Claimant relied on the following PCPs as discriminatory:

  1. The banning of necklaces in clinical areas of the hospital; and,
  2. The interpretation of those provisions as applying to a small cross worn on a fine chain around the neck.

The Tribunal held that group disadvantage was made out in this case, not only in relation to other Christians, but potentially to employees practising the Hindu religion. The Tribunal had regard to another employee of the Respondent’s who had in fact been unable to wear a necklace as a manifestation of his own Hindu religion [408].

Conclusion and analysis

All in all, the decision of the Tribunal in this case was not flattering to Croydon NHS Trust. It is clear that the Trust has had a significant issue of compliance with their dress code and uniform policy, however, clearly their methods of attempted enforcement were not correct either. 

There are a number of alternatives pointed out in the Tribunal’s reserved judgment that the Respondent could take on board, and of interesting note is the Tribunal’s assessment that, when it comes to infection risk or safety, there is minimal difference between a necklace and a bracelet worn above the elbow, or even a necktie. 

Will this lead to a change in policy from the Trust? The outcome certainly points to there not being any fault with the policy itself, which did permit the wearing of religious items and jewellery, but instead the issue is in how that policy is enforced across the board. The Tribunal was wholly unconvinced that this rife problem with necklaces in the hospital was dealt with appropriately in asking the Claimant to remove hers when others had impunity. 

In short, perhaps if the Respondent had taken steps to ensure that none of their employees were wearing necklaces in a clinical area, the Tribunal would not have been so scathing, though it is likely the Claimant’s Art. 9 rights could still have been breached.

The full decision is available here.