Dismissal2

Be very careful when moving to dismiss!

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Dismissal2An employer had an employee about whom a colleague has made a complaint.  The nature of the complaint?  The employee was “preaching religion to his work colleagues and to members of the public”.  The employee did not deny this.

The employer gave him a verbal warning and told him that it was unacceptable for him to preach to colleagues or members of the public during normal working hours – including lunchtime.  He confirmed that he understood this.

He was then observed talking about his faith with a man and also 2 teenage girls – all while attending an event on company time.  The employer wrote to him on a number of grounds, including that he “absented himself from the workplace without prior permission”.  After the resultant disciplinary hearing he was given a written warning.

Following receipt of a report from a colleague, concerning an incident during which he had spoken about religion to a man outside a shop, there was a further disciplinary hearing.  Following it he was suspended for 2 months without pay and was required “to seek and avail of professional assistance that would assist him in controlling his compulsion to express his religious beliefs”

After his return, he was again observed by a colleague to be talking about religion to an outside contractor.  He accepted that he was talking to the contractor.  He was suspended on full pay pending an investigation.  After the investigation, the employer wrote to him saying that they were recommending his dismissal, and informing him that he had 10 days to appeal.  He did not – and his dismissal was confirmed.

Does this sound reasonable?

Perhaps.  But he appealed, arguing that he had been discriminated against, and claimed that he had the right to manifest his religious belief.

The employer argued that, whilst the Employment Equality Acts and the EU Framework Directive 2000/78 protect his right to hold a religious belief, they do not protect his right to manifest that belief.

So his dismissal still appears reasonable. But on the other hand…

  • There is an overarching Charter of Fundamental Rights of the European Union that says that people’s freedom of religion includes the right “to manifest religion or belief, in worship, teaching, practice and observance”.
  • He was an Evangelical Christian – his faith has a requirement that adherents share the Gospel with other people.
  • The employer had a policy stating that no member of staff would be treated less favourably because of their religious belief.
  • No members of the public complained about his behaviour.
  • After being warned he did largely confine his religious conversations to lunchtimes.
  • He did not absent himself from work in order to preach about his beliefs.
  • After the first warning he was closely observed in a way that other employees were not.
  • Some staff were asked to monitor him.
  • He was made attend counselling because the employer thought that he had an addiction to preaching.
  • He never failed to carry out his duties.
  • His beliefs did not negatively impact on his employer’s business.
  • Other members of staff of different religions were not prohibited from practicing their religions.
  • Catholic employees were allowed attend mass during the working day.

The situation perhaps looks a bit different now?

So at first glance it appeared that the employer acted within their rights – but upon closer examination it can be seen that the situation is far more nuanced.  Fundamentally, it is unlawful to discriminate against workers because of their religion or belief or their lack of religion or belief.  The employee won his discrimination case and his employer was ordered to pay him €70,000!

If you would like to read more about this case – click here for the Equality Tribunal’s report.

And, if you need help in navigating this area of discipline, call Mary Cullen, Patrick Foley or Liam Barton on 056 770 1060 or email mcullen@insighthr.ie.

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