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Articles 28th Jul 2015

Employment Review: July 2015 – Discrimination – Assessing competing rights

An Employment Tribunal has found that a nursery unlawfully discriminated against a Christian worker when it dismissed her for expressing her belief to a lesbian colleague that God does not approve of homosexuality (Mbuyi v Newpark Childcare (Shepherds Bush) Ltd).

The key incident in the case was a conversation between Ms Mbuyi and her colleague “LP”, who was a lesbian living with her civil partner, after both returned from Christmas holidays. The conversation began by both discussing what they had done during the Christmas holidays. After Ms Mbuyi referred to activities at her church, LP said that she wouldn’t be interested in attending church until it recognised her relationship so she could get married there. Ms Mbuyi responded by giving her understanding of biblical teaching on homosexuality, including homosexuality being a sin. This appeared to have been in the context of Ms Mbuyi believing that LP viewed her sexuality as a bar to church attendance. It was put in some context by Ms Mbuyi suggesting that LP need not worry as everyone sins. LP was upset by the discussion and was sent home for the day.

The nursery failed to conduct an investigation and invited Ms Myubi to a disciplinary hearing. The nursery followed this action as it had already drafted a letter inviting Ms Myubi to a disciplinary hearing following her lateness in attending a training session. Ms Myubi was dismissed for discriminatory and “wholly inappropriate” conduct. After an unsuccessful internal appeal, she brought a tribunal claim asserting direct and indirect discrimination and harassment on grounds of her religion or belief.

Ms Mbuyi’s position was that LP had raised the issue of Ms Myubi’s religion, LP had asked if she would be welcome at church and specifically asked what Miss Myubi believed God thought about her living arrangements.

Dealing first with direct discrimination, the Employment Tribunal found that the nursery’s treatment of Ms Mbuyi was not because of her Christian faith in general. Rather it was on account of her Biblical belief that homosexuality is a sin. The Tribunal was prepared to accept this as a genuinely held belief, worthy of respect in a democratic society, not incompatible with human dignity and not in conflict with the fundamental rights of others. However, a person’s manifestation of the belief clearly has the potential to upset gay people and potential to infringe their rights. In relation to that issue, the Tribunal emphasised that the conversation had been instigated by LP, provoking Ms Mbuyi to give an honest response to her question. As a result, the Tribunal thought the employer had been wrong to regard Ms Mbuyi as having harassed LP; she had not instigated offensive comments and it had not been inappropriate behaviour for her to answer a question honestly.

The other key factor in the Employment Tribunal upholding the direct discrimination complaint was its finding that the nursery had made stereotypical assumptions about Ms Mbuyi’s evangelical Christian beliefs, which led it to interpret her words negatively and assumed she was being offensive about homosexual people. The Tribunal considered that a “secular” employee saying the same things would not have been treated the same way. It even noted the fact that no action had been taken against LP, when it was she who had initiated the exchange about religion and effectively disagreed with Ms Mbuyi’s Christian beliefs.

Finally, the Tribunal upheld the indirect discrimination claim given the finding that dismissal was “not proportionate” and so not objectively justified. The employer conceded that it had applied a provision, criterion or practice – employees should not express adverse views of homosexuality – which put employees with Ms Mbuyi’s beliefs at a particular disadvantage. Although the Tribunal found the nursery had the legitimate aim of providing its services in a non-discriminatory way, it had not adopted proportionate means of achieving this – for example, by imposing an absolute ban on discussing the matters in question and failing to make clear that dismissal would result.

Comment

It is a useful reminder that employers should seek to be even-handed when dealing with a clash between sexual orientation and religious beliefs. Where an employee professes a genuinely held, legitimate belief, the employer should not stereotypically assume his or her comments are discriminatory without satisfying itself that there is sufficient evidence.

More generally, employers should proceed with caution and tact when dealing with sensitive matters of this nature and attempt to find a mutually acceptable compromise where appropriate. In Myubi, it appears the employer moved far too quickly towards a disciplinary process without fully investigating the matter or considering other possible ways to defuse the situation. The Tribunal’s decision specifically states that LP was not suggesting the claimant should be dismissed. The nursery could, for example, have sought to discuss with the claimant and LP how their conversation had strayed into inappropriate territory and their joint responsibility for avoiding that scenario in future.


The content of this page is a summary of the law in force at the present time and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.

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