Religion at work: new unfair dismissal ruling
Where religious belief and sexual orientation conflict which one will prevail?
Where religious belief and sexual orientation conflict which one will prevail?
The case of Mbuyi v Newpark Childcare is the latest to involve a Tribunal tackling this difficult issue. The Employment Tribunal considered whether the dismissal of a Christian employee for expressing negative views about a colleague’s homosexuality was discriminatory.
The Tribunal also addressed the conduct and accuracy of the disciplinary and decision making process which led to the Claimant’s dismissal and whether the decision was proportionate.
The Claimant was dismissed following a discussion with a lesbian colleague (LP), in which the Claimant expressed her religious belief that homosexuality is a sin.
In April 2013 the Claimant, an evangelical Christian, began work for the employer as a nursery assistant working alongside LP, a lesbian who was living in a civil partnership with a female.
The employer had identified a number of issues with the Claimant regarding her ‘attitude, performance and inappropriate comments’. Subsequently, the Claimant was extremely late for a staff training day on 2 January 2014 and did not arrive until the afternoon. As result the employer intended to call a disciplinary meeting and an invitation letter was drafted on 6 January. On the same day, the Claimant and LP were having discussion at work about their respective Christmas breaks and the Claimant talked about some of her activities with her church.
Whilst it was not precisely clear as to what was said, both parties agreed that LP had moved the conversation on to ‘church and sexuality’. LP indicated she ‘would not be interested in attending church until it recognised her relationship such that she could get married there’. LP directly asked the Claimant whether she would be welcome at church and sought the Claimant’s view on ‘what God would think of her living arrangements’. The Claimant responded that, according to her biblical understanding, LP ‘need not worry, everyone sins’. LP was upset and, as a result, was sent home by her manager.
There was no formal complaint made by LP, however the letter inviting the Claimant to a disciplinary meeting referred to the Claimant’s lateness to work on 2 January 2014 and was amended to include “alleged discriminatory conduct in regard to co-workers”. This letter was sent to the Claimant on 6 January and the disciplinary hearing took place on 8 January 2014.
The employer sought advice from ACAS who highlighted the difficulty of this case as there was a potential conflict between two protected characteristics of sexual orientation and religious belief. The employer was advised to tread carefully and provide ‘objective justification for their decision’. The next day, 9 January 2014, the employer sent the outcome of the disciplinary to the Claimant.
The decision was that the Claimant had committed gross misconduct, by harassment, and that she should be summarily dismissed. She did not have the qualifying service required to bring a claim of unfair dismissal but alleged that her dismissal constituted discrimination or harassment on the grounds of her religious beliefs.
The Tribunal hearing
The Tribunal observed that consideration needed to be given to ‘the allegations at the time of the dismissal based on what was said, done and known, or what should have been said, done and known at the time.
The Tribunal held that the Claimant had not been dismissed simply because she was a Christian. She was open about her faith and the Respondent had been aware of it at all material times.
However, the crux of the matter was the Claimant’s belief that homosexuality is a sin and whether she had been unfairly treated for holding and expressing this view. The Tribunal considered the cases of Macfarlane v Relate Avon and Ladele v London Borough of Islington which suggest that a ‘genuinely held belief… more than an opinion or viewpoint’ attracts the protection of the Equality Act 2010.
The Respondent submitted that the Claimant’s religious belief was discriminatory, homophobic and ‘akin to racism’. However, the Tribunal drew a clear distinction between ‘a racist expressing hateful views and a person of religious conviction expressing their belief, however unwelcome.’
The Tribunal panel unanimously held that the Claimant was subjected to both direct and indirect discrimination because of her religious beliefs. The Claimant successfully established that she was dismissed for both holding and expressing her views.
The Tribunal observed that the Respondent had not fully investigated the allegations or properly put them to the Claimant. The Tribunal noted there may have been ‘stereotypical assumptions’ made and an element of ‘pre judgment that may infer discrimination’.
Furthermore, it was noted that LP had admitted taking the conversation into the area of religion and sexuality. Indeed, the Respondent conceded that the Claimant’s remarks ‘could be characterized as an honest response to an enquiry’.It was held that, although LP had been upset, she had not been harassed by the Claimant and had taken an equal part in the conversation.
There had been no discussion or exploration of appropriate conduct going forward and no express instruction not to discuss such matters in the workplace.
However, the Tribunal found that the Claimant had not been harassed by her employer. Whilst she had been treated unfairly in respect of her dismissal the Tribunal found no evidence to suggest the Claimant’s dignity had been violated or that she had been subjected to an intimidating or hostile work environment prior to dismissal.
Although the Respondent’s aim to provide its services in a non-discriminatory was found to be legitimate, the Tribunal found it was not proportionate to dismiss the Claimant without fully investigating the allegations.
The Tribunal in this case had to consider the very difficult issue for employers regarding how they should try to reconcile two potentially conflicting protected characteristics.
Some commentary on earlier ‘conflicting rights’ cases has suggested that the beliefs of Christian employees have been afforded less weight than other characteristics. This case, by contrast, was greeted by some as a significant ‘victory’ for Christian employees.
However it is important to remember that this Judgment as a first instance Employment Tribunal decision does not set a binding precedent.
Furthermore, the case is very specific to its own facts. The decision in reality places far more emphasis on the various procedural failings of the disciplinary procedure than the ‘clash of rights’ issue. Some of the issues were specific to this Claimant and, more importantly, the precise conversation being considered. The Tribunal noted the unfairness of an employee being dismissed for answering a direct question, with the person asking it half expecting they would not like the answer. A distinction was drawn between this and an employee who improperly foists their views on others.
The Judgment does serve as a useful reminder of the basics of a fair dismissal. The Tribunal reiterated that an employer should ensure that an invitation to a disciplinary hearing should set out clearly the allegations and the possible outcomes, including dismissal, and that major allegations should be investigated and put to the Claimant and other relevant parties. Such a process is necessary no matter how extreme the comments or conduct being investigated, and in a finely balanced case involving protected characteristics it is even more important.
If this case raises any issues for your organisation then please do not hesitate to contact Paul McFarlane (firstname.lastname@example.org or 020 7822 1906) or speak to your usual Weightmans contact.