Veale Wasborough Vizards
22 JUN 2015
Dismissing Christian over comments on homosexuality held to be discrimination
Partner, Veale Wasbrough Vizards
In Mbuyi v Newpark Childcare (Shepherds Bush) Ltd the Employment Tribunal (ET) found that a Christian nursery assistant was subject to religious discrimination when she was dismissed for expressing her belief that God does not approve of homosexuality to a lesbian colleague.
Ms Mbuyi, who was an evangelical Christian, had stated that "God is not okay with what you do" during a conversation instigated by a lesbian colleague (the colleague had asked Ms Mbuyi about her views). The colleague in question was upset by this comment and Ms Mbuyi was sent home and asked to attend a disciplinary hearing.
During the disciplinary hearing Ms Mbuyi was questioned on her comment to her colleague, to which she replied "I can only tell the Biblical truth. I am not a homophobic person but I believe homosexuality is a sin and God doesn’t like that". Discussions then moved away from what had happened into an exploration of what Ms Mbuyi believed. Newpark undertook no further investigation and following the disciplinary hearing Ms Mbuyi was dismissed. She then brought a claim against Newpark for harassment, direct discrimination and indirect discrimination.
Her claims for direct and indirect discrimination were successful. In relation to direct discrimination, the ET found significant failures in the way Newpark had investigated the allegations against Ms Mbuyi (there had been no investigation, the disciplinary hearing had moved away from the factual allegations against her and the written reasons for dismissing her included matters which had not been put to her at the disciplinary meeting). The ET held that even though Newpark was not anti- Christian, the procedural failures pointed to it holding 'stereotypical assumptions about [Ms Mbuyi] and her beliefs'. As a result she had been treated less favourably because of her religious faith.
Article continues below...
Jordan Publishing Employment Law Series
Examines how employment documents can be used to help manage home and host country immigration,...
In relation to indirect discrimination, whilst Newpark had the legitimate aim of providing its service in a non-discriminatory way, it was held by the ET to be disproportionate to dismiss Ms Mbuyi. The ET suggested circumstances where its finding might have been different, for example if the nursery had issued a previous warning to Ms Mbuyi or there was a clear procedure in place concerning the airing of religious views in the workplace.
The harassment claim failed because the ET found that there had been no unwanted conduct - Ms Mbuyi had, in the ET's view, relished the opportunity to inform her employer about her views.
This case is very fact specific and also given it is an employment tribunal decision is not binding.
However, it does flag some interesting issues. On a procedural level it stresses the importance of following a fair procedure in cases relating to the expression of religious beliefs even when the employee does not have enough continuous service to bring an unfair dismissal claim (as was the case here).
More controversially, the ET noted "the law would fall into disrepute if an individual could ask a question, knowing the likely response and, if receiving it….claim it was …harassment". Many commentators have pointed out that this may be far too simplistic. Answering a question honestly cannot be a defence to airing offensive views in the workplace (when saying this we make no comment on Ms Mbuyi's views, we are simply raising a general question about the application of the law).