In the recent EAT case of Wasteney v East London NHS Foundation Trust  the EAT has dismissed a discrimination claim on the grounds of religion or belief where a Christian employee was disciplined and received a warning for seeking, in a variety of ways, to convert a Muslim employee to her faith. These included the Christian manager praying with the junior worker and the "laying on of hands", giving a book to her Muslim junior which concerned the conversion to Christianity of a Muslim woman, and inviting her to various services and events at her church. She claimed under Article 9 the Tribunal who heard the case in the first instance failed to give effect to Article 9 ECHR which protects not only the right to hold, but also to manifest religious belief. The EAT also therefore needed to consider under Article 9.2 of ECHR which permits justification of an interference with the right to manifest religious belief, in the context of a claim for direct discrimination, which permits no defense of justification.
The crux of this case was that it was not the manifestation of a religious belief that the Christian manager was disciplined for but the improper manner of manifestation.
“If the case is one of direct discrimination then the focus on the reason why the less favourable treatment occurred should permit an ET to identify those cases where the treatment is not because of the manifestation of the religion or belief but because of the inappropriate manner of the manifestation. Similarly, a clear sense of what the conduct did in fact relate to should permit the ET to reach a conclusion as to whether it is the manifestation of religion or belief that is in issue or whether it is in fact the complainant’s own inappropriate conduct (and that must be right, otherwise an employer’s attempt to discipline an employee for the harassment of a co-worker related to (e.g.) the co-worker’s religion or belief could itself be characterised as harassment related to that protected characteristic).”