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Wearing a cross necklace means Christian nurse is dismissed – and wins her discrimination claim

After being harassed and directly discriminated against by an NHS Trust, a Christian nurse was forced to resign when she refused to remove her cross.

‘Humiliating, hostile and threatening environment’ is how the South London employment tribunal described the treatment received by Mary Onuoha, which subsequently led to her resignation and constructive dismissal claim.

The tribunal also ruled that Ms Onuoha had been victimised by managers after she raised a grievance about the discrimination against her.

Primarily working in surgical theatre at Croydon University Hospital Ms Onuoha wore a necklace with a small cross pendant while she was at work and when she was not working. She considered it to be a symbol of her religious devotion.

Ms Onuoha had in fact worn the necklace for some 13 or 14 years when working at the trust and was never challenged about it. The first time she was asked to remove it was in 2014, and she refused for religious reasons.

She made reference to other members of staff who wore religious items including hijabs, turbans and kalava bracelets to work and said she thought she was being treated differently to others.

She was again asked to remove it in 2016. Onuoha was offered several compromises, including pinning the cross inside her top or wearing small stud earrings that bore the cross symbol; however she felt that the earrings would have been barely visible as symbols of her religion.

In 2017, the trust was criticised by the Care Quality Commission for failing to enforce dress codes, which encouraged it tighten up its approach in 2018.

Onuoha was again instructed to remove the necklace in August 2018. Compromises were offered once more, but the claimant refused to remove the necklace and was told that she may face disciplinary action.

Several heated discussions with managers occurred. On one occasion a manager interrupted a surgical procedure to address the issue with the claimant.

In October 2018, the claimant raised a formal grievance complaining of discrimination because of race and religion under the Equality Act 2010 and hostile and threatening behaviour by managers.

The disciplinary investigation was paused while her grievance was considered by the trust. She was redeployed to non-clinical duties as the trust said she could wear her necklace there without breaching the uniform policy. But this redeployment placed her with a manager against whom she had raised a grievance.

The disciplinary investigation report said Onuoha was in breach of the uniform policy, and her grievance was dismissed. She was given a final written warning in March 2019.

Again, she refused to remove her cross necklace and was redeployed to another team to carry out clerical work.

Following the news that she would be subject to further disciplinary investigations, and the dismissal of an appeal, the claimant resigned in August 2020, complaining that she had been constructively dismissed and discriminated against.

Tribunal claim

Onuoha told the tribunal that the trust had treated her in a way that breached her rights under article 9 of the European Convention on Human Rights, which concerns a right to manifest religious beliefs.

She further complained that her treatment was direct religious discrimination, harassment, victimisation and indirect religious discrimination under the Equality Act 2010, and she said she had been constructively unfairly dismissed.

The trust argued that it had asked the claimant to remove the necklace as it posed an infection risk. It was also noted that a patient could grab the necklace and injure the claimant.

The trust said its objection to the necklace was nothing to do with Onuoha’s religious beliefs.

No real thought was given to the claimant’s point that others were wearing religious apparel in clinical areas and that she should be treated equally to them” – employment judge Dyal

In coming to its conclusions, the tribunal looked at other items that staff wore to manifest their religious belief. It noted that kalava bracelets were allowed by the trust because they could be pushed above the elbow, while religious head coverings such as turbans and hijabs were allowed if they fitted closely.

“There is no cogent explanation as to why these items are permitted but a fine necklace with a small pendant of religious devotional significance is not,” the judgment says. “There has been no evidence, for instance, that these items carry a lower infection risk than a necklace.”

It noted that ties were permitted, although strongly discouraged, which also presented a choking risk if grabbed by a patient.

Overall, the tribunal found that the infection risk posed by wearing the necklace was “very low”.

The tribunal also noted that jewellery wearing was rife among many staff, which was widely tolerated by management, even when Onuoha was being disciplined.

It found that the trust had directly discriminated against and harassed the claimant, or in the alternative indirectly discriminated against her. One of her complaints of victimisation was also upheld.

Employment judge Dyal said that the trust’s rejection of her grievance had been “offensive and intimidating” and said the trust had “failed to properly grapple with the complexity of the issues”.

“No real thought seems to have been given to whether it was really appropriate to discipline the claimant for doing something that in fact many others in the workforce (including more senior colleagues who worked just as closely with patients) were doing unchallenged. Equally, no real thought was given to the claimant’s point that others were wearing religious apparel in clinical areas and that she should be treated equally to them,” the judgment says.

Any employer will now have to think very carefully before restricting wearing of crosses in the workplace. You can only do that on specific and cogent health and safety grounds” – Andrea Williams, Christian Legal Centre

Andrea Williams, chief executive of the Christian Legal Centre – which represented Onuoha, said: “From the beginning this case has been about the high-handed attack from the NHS bureaucracy on the right of a devoted and industrious nurse to wear a cross – the worldwide, recognised and cherished symbol of the Christian faith. It is very uplifting to see the tribunal acknowledge this truth.

“It was astonishing that an experienced nurse, during a pandemic, was forced to choose between her faith and the profession she loves.

“Any employer will now have to think very carefully before restricting wearing of crosses in the workplace. You can only do that on specific and cogent health and safety grounds. It is not enough to apply general labels such as ‘infection risk’ or ‘health and safety’.”

A spokesperson for Croydon Health Services NHS Trust said: “We would like to apologise to Mrs Onuoha and thank the employment tribunal panel for their careful consideration of this matter.

“It is important that NHS staff feel able to express their beliefs, and that our policies are applied in a consistent, compassionate and inclusive way.

“Since this matter in 2019, our dress code and uniform policy has been updated with the support of the trust’s staff networks and trade union representatives to ensure it is inclusive and sensitive to all religious and cultural needs, while maintaining effective infection prevention and control measures and protecting the safety of our patients and staff. However, we will carry out a further review of our policy and practices in light of this judgment.”

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