Religion or Belief Discrimination – The Correct Comparator

March 27, 2014

Religion or Belief Discrimination – The Correct Comparator

A practising Christian who was dismissed from his job as a paediatric consultant after he refused to accept recommendations that he refrain from using religious references in his workplace communications has lost his appeal against the decision of the Employment Tribunal (ET) to dismiss his claims of unfair dismissal and discrimination on the grounds of religion or belief (Drew v Walsall Healthcare NHS Trust).

David Drew was employed by Walsall Healthcare NHS Trust in a multicultural and multi-faith department. He was in the habit of using Christian references in his professional communications. In April 2009, another member of staff raised a grievance against Dr Drew, which was treated as a complaint under the Trust’s ‘bullying and harassment policy’, and he raised a grievance against her. Dr Drew was suspended by the Trust’s medical director while the grievance was investigated. Whilst he was cleared of any misconduct in relation to the complaint made against him, the internal investigation advised that Dr Drew’s style of communication was unacceptable and recommended that his religious beliefs should be kept to himself and not imposed on others.

Dr Drew did not accept the recommendation and raised a detailed grievance with the Chief Executive of the Trust. It was decided that the Royal College of Paediatrics would carry out an independent review and a panel of two consultants and an HR practitioner were duly appointed to carry out the task. Their report contained a recommendation that Dr Drew should in future refrain from using religious references in his professional communications, verbal or written, as this was inappropriate and had an ‘impact on individuals, relationships and the functioning of the department and the Trust’. The Trust agreed to adopt the panel’s findings and sought Dr Drew’s acceptance of them. He was unable to do so and did not accept that the recommendation regarding his communications was necessary.

Matters escalated and so the Trust appointed an independent human resources consultant to investigate Dr Drew’s non-acceptance of the independent review panel’s findings. Her report recommended formal disciplinary proceedings, which subsequently led to Dr Drew’s dismissal.

Dr Drew claimed that he had been discriminated against on the grounds of his orthodox Christian belief and had been unfairly dismissed.

The ET rejected his claims and its decision was upheld by the Employment Appeal Tribunal (EAT). The ET had reached factual conclusions which it was open to it to reach and were not based on an error of law. Having rejected the comparator put forward by Dr Drew, it had correctly applied the guidance given by the EAT in Ladele v London Borough of Islington on identifying a hypothetical comparator in such circumstances, although it could have avoided the exercise by going directly to determination of the reason why Dr Drew was treated as he was.

The correct hypothetical comparator in this case was a person in Dr Drew's position – i.e. a consultant paediatrician – who in the course of his work made references to which others objected based on his own particular religious or non-religious belief system. The ET was entitled to choose as a comparator a consultant paediatrician of a different religion. Dr Drew's case was not that his employer was discriminating against all religions as opposed to a non-religious belief system. The ET was not, therefore, in error in failing to restrict the comparator to a person who was an atheist.