Claimant v Airedale NHS Foundation Trust
Outcome
Individual claims
The tribunal found the claimant was challenged by Mary Hytch for perceived non-compliance with IPC and uniform policies (not rolling sleeves up), not because of her religion. Hytch had challenged other staff that day on similar issues. A hypothetical non-Muslim comparator would have been treated the same way. The altercation escalated due to both parties' reactions, not because of the claimant's Muslim faith. Although Hytch knew the claimant was Muslim (from her hijab), religion was not mentioned during the incident and was not the reason for the challenge.
The tribunal accepted the conduct on 6 December 2022 was unwanted and had the effect of intimidating and humiliating the claimant, making it reasonable for her to feel that way given her religious belief about covering her forearms. However, the tribunal found the conduct was not 'related to' religion. The purpose was to enforce IPC/uniform policies. The incident escalated because of the claimant's reaction to being challenged and Hytch's response, not because of religion. Religion was not mentioned. The tribunal concluded the sole reason was policy enforcement and reaction to perceived non-compliance, though the decision was described as 'finely balanced'.
Facts
Dr Butt, a Muslim consultant ophthalmologist employed by Bradford Teaching Hospitals NHS Foundation Trust, worked one day a week at Airedale NHS Foundation Trust's hospital. On 6 December 2022, Mary Hytch (Divisional Director of Nursing) challenged her in a theatre corridor for not having sleeves rolled up ('bare below the elbows' per IPC policy). The claimant believed she was in a non-clinical area where the policy did not apply and that she covered her forearms for religious reasons. An altercation ensued involving Hytch, Sheree Herpe, and Claire Tilley. The claimant became distressed and cancelled her operating list. On 13 December, a nurse told the claimant she had been instructed to challenge her, and an audit was conducted in her theatre. The claimant complained of racial profiling and religious discrimination.
Decision
The tribunal unanimously dismissed all claims. The tribunal found that the claimant was challenged on 6 December because of perceived non-compliance with IPC/uniform policies, not because of her Muslim faith. Mary Hytch had challenged others that day on similar issues. The altercation escalated due to both parties' reactions. While the conduct was unwanted and had a humiliating effect, it was not related to religion but to policy enforcement. The instruction to challenge the claimant on 13 December was ill-advised but motivated by perceived non-compliance, not religion. The audit was part of routine procedures. Though the tribunal acknowledged poor handling by managers and noted the harassment decision was 'finely balanced', no discrimination was established.
Practical note
Enforcement of workplace policies (e.g. infection control 'bare below the elbows') applied to all staff equally, even where a worker covers for religious reasons, will not amount to religious discrimination if the employer can show genuine policy-driven motivation and treats comparators the same way, though tribunals will scrutinise whether religious considerations were properly accommodated and whether enforcement was proportionate.
Legal authorities cited
Statutes
Case details
- Case number
- 1802028/2023
- Decision date
- 7 March 2024
- Hearing type
- full merits
- Hearing days
- 3
- Classification
- contested
Respondent
- Sector
- healthcare
- Represented
- Yes
- Rep type
- solicitor
Employment details
- Role
- Visiting Consultant Ophthalmologist
Claimant representation
- Represented
- Yes
- Rep type
- barrister