An Employment Tribunal found that a Christian nursery assistant, who was dismissed following a conversation with a lesbian colleague during which she expressed her belief that God does not approve of homosexuality, was subjected to direct discrimination because of her religious beliefs (Mbuyi v Newpark Childcare (Shepherds Bush) Ltd).

Facts

The Claimant was a Belgian national who attended an evangelical church in London.  She began employment with Newpark Childcare (Shepherds Bush) Ltd (Newpark) as a nursery assistant in April 2013 until she was dismissed for gross misconduct on 9 January 2014.  One of the Claimant's colleagues (LP) was also employed as a nursery assistant during that time.  LP is a lesbian who lives with her civil partner.

In November 2013, LP was hospitalised after being struck by a child.  On LP's return to work, the Claimant gave her a Bible as a gift.  In it, she had written a note referring to LP's 'struggle'. 

In January 2014, the Claimant was extremely late for work (not arriving until the afternoon when her shift started in the morning).  The nursery drafted a letter to the Claimant inviting her to a disciplinary hearing. 

A few days later, during a conversation between LP and the Claimant, the Claimant referred to activities at her church.  LP said that she wouldn't be interested in attending church until it would recognise her relationship with her partner so she could get married there.  The Claimant replied that "God is not ok with what you do", but elaborated that "we are all sinners".  LP was upset by the conversation and a manager sent her home for the day.  LP sent an email to her manager that evening explaining that she saw the Claimant's comments as a personal attack and that she now felt very uncomfortable working with the Claimant.  LP said that she now questioned the intent behind the Bible that the Claimant had given to her in November 2013.

Newpark subsequently amended the draft letter inviting the Claimant to a disciplinary hearing about her lateness to also include an additional allegation of "alleged discriminatory conduct in relation to co-workers".

Disciplinary hearing

The Claimant attended a disciplinary hearing in January 2014, where she was informed at the outset that a possible outcome was her dismissal. 

In relation to the allegation of "alleged discriminatory conduct in relation to co-workers", the Claimant suggested that it was, in fact, LP who had directed the conversation towards the Church and sexuality.  The Claimant sought to explain her comments to LP by saying that she could "only tell the Biblical truth" and that, whilst she wasn't homophobic, "homosexuality is a sin and God doesn't like that."  The Claimant's gift of a Bible to LP was also discussed, including the fact that the comment inside LP's book was subsequently perceived by her and others to have perhaps been a reference to LP's 'struggle' with her sexuality.  However, the Claimant suggested that her note merely referred to LP's recovery from her injury.

When asked whether the Claimant had previous, discussions with LP about religion, the Claimant replied that LP had approached her and not vice versa.  However, this was not investigated further. 

When asked what she would do if a child from a same-sex couple was in her care, the Claimant said that "they are not to be hated" but explained that, "if approached", she would not lie about her beliefs.  In response to the panel's question about whether she thought LP was wicked, the Claimant replied "Yes, we are all wicked". 

The panel also considered the other allegation of extreme lateness.

Newpark subsequently came to the decision that the Claimant had committed gross misconduct by reason of harassment and dismissed her.  However, whilst the dismissal letter referred to the Claimant's conversation with LP in January 2014 as "wholly inappropriate" and discriminatory, it also referred to earlier inappropriate comments to LP that had not been raised in the hearing.  These included that, in September 2013, the Claimant was alleged to have told LP that she had "hair too short for a woman".  The Claimant was also alleged to have said the following day "Oh my God, are you a lesbian?", although the Claimant had always denied asking LP this.

The Claimant's gift of the Bible to LP was cited as an example of harassment on the Claimant's part.  Newpark accused the Claimant of deliberately targeting LP because of her sexual orientation and commented that the Claimant did not appear to regret what she had said and that she "categorically would do it again".  This was despite the fact that the hearing notes recorded that that Claimant only said that she would do so "if approached".

The Claimant appealed internally but was unsuccessful, following which she brought an Employment Tribunal (ET) claim, asserting harassment, direct discrimination and indirect discrimination on grounds of her religion or belief.

Decision

Harassment

The ET dismissed the claim of harassment, finding that the Claimant had welcomed the disciplinary hearing as an opportunity to express her views in more detail.  It followed that the conduct was not unwanted, it did not violate the Claimant's dignity, and that she had not been subjected to an intimidatory or hostile work environment.

Direct discrimination

Regarding direct discrimination, the ET observed that Newpark's treatment of the Claimant was not because she was Christian.  Instead, the issues arose on account of her Biblical belief that homosexuality is a sin.  The ET found that this was 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.

The ET found that the dismissal letter accused the Claimant of targeting LP without any real evidence to back this up and referred to allegations which had not been put to the Claimant during the disciplinary hearing. 

In terms of whether the Claimant had targeted LP, the ET found that disciplinary panel had decided not to investigate the Claimant's version of events further, which meant that they had accepted the Claimant's evidence that it was LP who had instigated the discussion surrounding LP's homosexuality and then took it into dangerous territory.  Therefore, the ET could not support a finding of harassment in relation to the Claimant answering LP's specific questions.

Procedurally, although the ET emphasised that a finding of unfairness did not make a claim for discrimination, the ET noted that there were lots of procedural failings in the disciplinary process which made the decision to dismiss unfair.  As a result, the ET found that Newpark had made stereotypical assumptions about the Claimant's evangelical Christian beliefs, which led it to interpret all of the Claimant's words negatively and assume that she was being offensive about homosexual people.  The ET did not believe that a secular comparator would have been treated in the same way and noted that LP, who had initiated the conversation around religion in contravention of Newpark's policies, hadn't been reprimanded for this.  Therefore, the ET concluded that the Claimant had proved sufficient facts to require a non-discriminatory explanation for the Claimant's treatment, which meant that the burden of proof shifted to Newpark. 

As Newpark were unable to provide a non-discriminatory explanation for their treatment (i.e. putting belief-based questions to the Claimant at the disciplinary hearing, failing to put many allegations to the Claimant at the hearing and concluding that that the Claimant had harassed LP despite there being no clear evidence to back this up), the claim for direct discrimination was upheld.

Indirect discrimination

The ET also upheld the claim of indirect discrimination.  Newpark acknowledged that it had applied a provision, criterion or practice that employees should not express any adverse views of homosexuality.  This put employees with the Claimant's beliefs at a particular disadvantage.  The ET also found that Newpark had a legitimate aim of providing its services in a non-discriminatory way and in accordance with the Early Years framework.  However, the absolute nature of the ban on discussing these matters, and failing to make it clear that dismissal could result, led the ET to conclude that it was not a proportionate means of achieving a legitimate aim.

Comment

This decision was extremely fact-specific and, as it is an ET decision, is not binding.  According to the judgment, the Claimant found alternative employment shortly afterwards and gave evidence of little injury to feelings. The ET also noted that there was an argument for contributory conduct.  Therefore, it appears more likely that the case will settle for a relatively low amount than be subject to an appeal.

Where does this leave employers?  Well, although the case is another decision on the conflict that can arise between competing protected characteristics in the workplace, it does not signal a significant change in direction in this area of law.  Nevertheless, it is a useful reminder that employers should seek to be fair-minded when dealing with a clash between sexual orientation and religious beliefs.  This means proceeding with care when dealing with sensitive matters of this nature and looking to find an acceptable compromise between the parties where appropriate.  Here, the employer moved too quickly towards a disciplinary process without first fully investigating the matter, or considering other possible ways to diffuse the situation, such as discussing with the Claimant and LP how their conversation had strayed into inappropriate territory and how to avoid that happening again.