Nurse disciplined for wearing cross necklace to work was constructively unfairly dismissed, tribunal rules

Judge finds NHS trust’s uniform policy was rarely enforced and that permitted forms of jewellery posed a greater health and safety risk

A Catholic nurse practitioner who had been reprimanded for wearing a cross necklace to work was constructively unfairly dismissed, a tribunal has ruled.

The South London Employment Tribunal found that Croydon Health Services NHS Trust had breached the rights of Mary Onuoha to freedom of religious expression. It also upheld numerous claims of direct religious discrimination, harassment and victimisation.

The trust claimed that its dress code and uniform policy prohibited Onuoha, who had worked at the trust for 19 years from November 2001 until September 2020, from wearing the necklace, citing health and safety concerns. The item of jewellery could be a source of infection or may present a choking hazard if it were grabbed by an aggressive patient, the trust said.

However, the tribunal found that the uniform policy was rarely enforced and only a small number of employees were singled out if they were thought to break the dress code. It also found that no other employee had been subjected to significant action from management over their uniform.

“The claimant was subjected to detrimental treatment because of her manifestation of belief,” the tribunal said. “Such detrimental treatment was direct discrimination."

Onuoha was employed as a theatre practitioner for the latter part of her employment, primarily working in surgical theatre. Her duties included ensuring the smooth running of the theatre, assisting surgeons with surgical procedures, and providing patients with post-operative care.

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She estimated that 70 per cent of her time was spent as a ‘scrubbed-in nurse’, which required her to wear a surgical covering that concealed her from neck to wrist, meaning the necklace could not be seen. For the remainder of her duties, she worked as a circulating nurse, wearing standard issue scrubs which did not conceal the necklace.

For the first 13 years of her employment, Onuoha was permitted to wear her necklace without any issues. The issue was raised for the first time in 2014, and thereafter in 2015 and 2016, but each time there was no follow up after she refused to remove it for religious reasons.

However, in 2017, the trust was criticised for its failure to enforce its uniform policy after an inspection by the Care Quality Commission (CQC). Following this, in 2018 the trust sent general briefings to all staff about its uniform policy, but these efforts proved to be unsuccessful.

Formal concerns about Onuoha were initially raised in the summer of 2018, when the clinical lead practitioner for anaesthesia at the time demanded Onuoha remove the necklace and threatened to “escalate” the issue if she refused.

Then, on 21 August, the head of theatre asked Onuoha to leave an operating room during a procedure so they could have a conversation about removing her necklace. The tribunal heard a “heated” discussion ensued between the two parties.

Following this, a formal investigation of Onuoha commenced in early October. Onuoha raised her own grievance on 16 October, claiming race and religious discrimination under the 2010 Equality Act.

Between September 2018 and February 2019, Onuoha also gathered data on fellow employees who were found to break the uniform policy and recorded a large number of people wearing jewellery in clinical areas, including many doctors and anaesthetists, as well as a large number of nurses.

On 20 November that year, the hospital wrote to Onuoha notifying her that she would be redeployed to non-clinical duties, and on 13 March 2019 a disciplinary hearing was held. Onuoha asked that it be postponed until a witness of hers returned from sick leave, but this request was rejected. She received a final written warning on 28 March 2019.

A second investigation was started by the trust in January 2020 because of Onuoha’s “continued failure to adhere to the dress code”. Onuoha went on stress-related sick leave from 1 June and resigned on 21 August following another disciplinary hearing. Her employment ended the following month.

The tribunal accepted Onuoha’s claims that the trust allowed other employees to wear items of religious apparel without consequence, including headscarves, turbans and kalava bracelets. It also found that neckties, headscarves and plain rings, which were all permitted by the trust, presented a greater health and safety risk than the claimant’s necklace.

The trust claimed that it had offered Onuoha several alternatives to wearing the necklace, including wearing cross-shaped stud earrings less than 5mm wide. However, the tribunal found that this would not have “served the function of being a visible manifestation of belief”, as they would only be seen at close range.

The trust also claimed that it offered Onuoha the opportunity to wear an embroidered cross on her uniform. However, it was found that this was never offered to her, and was “not the manner in which the claimant was accustomed to, nor the manner in which she wanted to manifest her belief”.

Onuoha said she was “delighted” with the outcome of the case. “My cross has been with me for 40 years. It is part of me, and my faith, and it has never caused anyone any harm,” she said in a statement.

Croydon Health Services NHS Trust has been contacted for comment.