Nurse ‘bullied’ and ‘victimised’ for wearing a cross at work wins case for unfair dismissal

Mrs Onuoha worked as a theatre practitioner for Croydon Health Services NHS Trust. This was a nursing role performed primarily in surgical theatre. Mrs Onuoha is a devout Catholic and one of her religious beliefs is that it is important to show her faith by wearing a cross. She does this by wearing a necklace with a cross pendant on it (cross necklace).

Dress code

The trust’s dress code and uniform policy states that necklaces must not be worn in clinical areas. The reason for this prohibition was mainly due to health and safety risks, because it could be a source of infection and/or could be grabbed by a patient.

No follow-up

Mrs Onuoha had worked for the trust since 2001 and had worn a cross necklace for the first 13 years without it being challenged. In 2014, she was asked to remove it, but she refused on religious grounds and the trust did not follow it up. She was asked again in 2015 and 2016 to remove it. On each occasion, she refused and there was no follow-up.

Several staff ignored dress code

In 2017, the trust was criticised in a Care Quality Commission inspection for failing to enforce its dress code and uniform policy. Following this, the trust made some efforts in the summer of 2018 to enforce the policy. There were general briefings to all staff, but a number of staff continued to ignore the dress code. Mrs Onuoha was told that she needed to stop wearing the cross necklace or to reach a compromise, for instance by wearing it inside her top or by wearing cross stud earrings instead. Mrs Onuoha refused to remove the cross necklace or to compromise.

Disciplinary investigation

A disciplinary investigation took place and Mrs Onuoha raised a grievance. The result of the disciplinary process was that she was re-deployed to non-clinical duties and given a final written warning. Her grievance was not upheld.

Claimed constructive dismissal

She continued to wear the cross necklace and, when the trust informed her that they would start disciplinary proceedings again, she resigned and claimed constructive dismissal.

Mrs Onuoha claimed that her treatment by the trust was in breach of her rights under article 9 of the European Convention on Human Rights (ECHR). Article 9 is the right to manifest religious beliefs. She also claimed that her treatment was direct religious discrimination, victimisation and indirect religious discrimination under the Equality Act 2010. She also claimed that she had been constructively unfairly dismissed.

Findings

The employment tribunal (ET) found that Mrs Onuoha’s article 9 ECHR rights had been interfered with and that the trust had failed to justify this interference. The ET came to this conclusion because, although there was a small risk to health and safety posed by Mrs Onuoha wearing the cross necklace, they found that:

• Many members of the trust workforce wore jewellery, including necklaces. Many doctors and nurses continued wearing jewellery during the period in which Mrs Onuoha was being disciplined and it was widely tolerated by management.
• The trust allowed its employees to wear other items of religious apparel that had similar health and safety risks as a cross necklace. The trust had provided no proper explanation as to why those items were allowed but a cross necklace was not.

The ET also found that in a number of ways related to the requirement to remove the cross necklace, the trust had directly discriminated against and harassed Mrs Onuoha. A single complaint of victimisation also succeeded.

Repudiatory breach of contract

Finally, the ET found that the trust’s conduct was sufficiently serious to amount to a repudiatory breach of contract and that Mrs Onuoha had been entitled to resign and claim constructive dismissal. The dismissal had been both discriminatory and unfair.

However, the ET rejected the claim that the trust was deliberately targeting the cross necklace as a symbol of the Christian faith and that the trust had acted out of any kind of prejudice towards the Christian faith.

Summary

This case highlights that, although items of religious jewellery can be banned by employers on health and safety grounds, polices must be clear and must be applied consistently to all members of staff.

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