The latest “clash of rights” case, widely reported as a victory for Christians, does little to provide clarity to employers on this sensitive workplace issue. It does, however, highlight that employers should not over react to the expression of religious beliefs at work without first discussing these matters with employees directly. In this case, the tribunal considered that the employer’s attitude towards the claimant was tainted with a negative and stereotypical attitude.
Sarah Mbuyi, an evangelical Christian nursery worker was employed by Newpark Childcare for over 8 months before she was dismissed for gross misconduct, on the basis that she had been late and had engaged in discriminatory conduct against her colleague, LP, who is a lesbian. On the day that Miss Mbuyi was late, which was the original reason for the disciplinary meeting, she had a discussion with LP regarding her beliefs on homosexuality where she said that the bible says that homosexuality is a sin. LP was upset by this comment and told her manager, but did not make a formal complaint. In an earlier incident she had given LP a bible as a gift. During disciplinary proceedings regarding her comments to LP, when asked whether she would be willing to read a book in the nursery about a child with two mothers, Miss Mbuyi had responded that she would ask a colleague to do it. Her employers viewed her behaviour as amounting to harassment based on the comment that homosexuality is a sin and dismissed her. There was no proper investigation prior to the disciplinary hearing, allegations were not put to her in advance and the decision was made on the basis of the claimant’s interview alone.
Miss Mbuyi claimed that her dismissal was an act of direct or indirect discrimination and/or harassment on the grounds of her religion or belief. She did not have sufficient service to claim unfair dismissal. The tribunal upheld her direct and indirect discrimination claim, but dismissed her harassment claim. Her treatment, the tribunal explained was not because she was Christian but because of her belief that homosexuality is a sin.
In its decision, the tribunal considered numerous discrepancies in the disciplinary procedure followed by her employer and also noted that LP had initiated conversations regarding Miss Mbuyi’s faith in which the alleged discriminatory comments arose. The tribunal ruled that the substantive and procedural irregularities in the investigation and disciplinary hearing meant that the decision to dismiss in these circumstances was not proportionate. Her employer’s attempt to justify its behaviour failed and resulted in a finding of indirect discrimination. In relation to direct discrimination the tribunal took the view that her employer’s had formed stereotypical assumptions about the claimant and her beliefs, “such that anything that could be considered to relate to LP’s sexuality would not only be construed as such, but construed both negatively and related to the belief.”
Many in the media reported this case as a victory for Christian employees and their freedom to express religious views at work. Yet on a number of levels this is not the case. First of all, the decision came from an employment tribunal, and as such is not binding. Secondly the employers did themselves no favours in relation to the way they handled the disciplinary process which was both procedurally and substantively unfair leading to the finding of direct discrimination. Similarly their overreaction and decision to dismiss did not pass the proportionality test required to defend an indirect discrimination claim. Had the issue related to the claimant’s refusal to read a book about same sex mothers then a different outcome may have been expected.
Employers who are faced with difficult decisions regarding a clash of rights in the workplace will derive some assistance from Article 9(2) of ECHR (European Convention of Human Rights) which places limitations on the manifestation of religious belief, and the recent interpretations of this concept by the UK appellate courts. A distinction has been drawn between the freedom of an employee to hold a belief, and the way in which they manifest that belief in the workplace, particularly where the position is in conflict with an employer’s policy on equality or the need for secularity in their role.
For example in McFarlane v Relate (Avon) Ltd a Christian counsellor who found homosexuality contrary to his religious views and refused to offer psycho-sexual therapy to same sex couples, was summarily dismissed because his conduct amounted to a breach of his employer’s equal opportunities policy and code of ethics. His claim for both direct and indirect discrimination failed. Despite the intervention of a former Archbishop of Canterbury the Court of Appeal ruled that while the law protects the right to believe, it does not offer a blanket protection solely on the ground that the belief is based on religious precepts. Similarly a Christian social worker who was asked to stop proselytising in the workplace, (Chondol v Liverpool City Council) and who was subsequently dismissed was unsuccessful in his claim for religious discrimination, because he was considered to have improperly “foisted” his religious beliefs on service users, in breach of the employer’s policy.