Eleena Misra successfully defended her first instance win for the Walsall NHS paediatric department at the EAT. Dr. Drew, Consultant Paediatrician and one time clinical director in his department, brought complaints of religious discrimination and unfair dismissal claiming that he had been subjected to direct religious discrimination as an orthodox Christian. The Trust had, after a long history of issues, asked Dr. Drew to accept an independent recommendation to refrain from using religious references and language in professional communications.
A contentious point on appeal was the correct hypothetical comparator. Counsel for Dr. Drew contended that the only appropriate comparator was an atheist circulating exactly the same material as the Claimant had. Eleena, instructed by Mills and Reeve LLP in both the Tribunal and EAT proceedings, contended that it was appropriate to construct a hypothetical comparator who was in materially the same circumstances as Dr. Drew save that he or she was not an orthodox Christian (the protected characteristic as formulated by Dr. Drew) and need not be an atheist.
The EAT agreed with Eleena that the correct approach as set out in Ladele v. LB Islington had been followed and urging the Tribunal to focus on the “why” question had been entirely appropriate. The hypothetical comparator could be a person of a different faith, no faith or agnostic; the Tribunal was entitled to answer the “why” question by reference to a hypothetical comparator who was of a different religious persuasion or of none who was circulating material relevant to their tenets of belief. The key objective was to answer the “why” question in a meaningful and realistic way.
Eleena specialises in tribunal, appellate and High Court litigation in the healthcare sector and forensic medicine. She is Head of the Disciplinary & Regulatory practice group in chambers and the elected London/SE representative for ELA.