The Employment Tribunal has issued its judgment in the case of Mbuyi v Newpark Childcare, which concerned a Christian nursery assistant who claimed her employer had discriminated against her on the grounds of her religion or belief, when it dismissed her for gross misconduct.
Miss Mbuyi worked at a nursery. One of her colleagues, a fellow nursery worker (‘LP’), was a lesbian and in a civil partnership with a woman. Miss Mbuyi and LP had a conversation at work in which they discussed what they had done over the Christmas break. Miss Mbuyi attended an evangelical church in London and she told LP about some of her activities with her church. The conversation moved on and they discussed LP’s living arrangements. Miss Mbuyi expressed her belief that homosexuality was a sin. Miss Mbuyi was later accused of discriminatory conduct, but claimed that what she had said was only in response to questions that LP had asked her.
Following a disciplinary hearing, Miss Mbuyi was dismissed for gross misconduct for harassment of LP. Miss Mbuyi claimed that her dismissal was an act of discrimination and/or harassment on the grounds of her religion or belief. The Tribunal held that Miss Mbuyi could not succeed in her complaint of harassment, because the conduct did not appear to have been unwanted, but it did find that she had been subjected to discrimination on the grounds of her belief that homosexuality was a sin.
Miss Mbuyi did not have sufficient length of service to claim unfair dismissal; however the Tribunal found several procedural failings on behalf of the employer and drew inferences from these. These included, for example, not carrying out an investigation, not informing her before the disciplinary hearing that dismissal was a potential outcome, enquiring into her beliefs during the disciplinary hearing rather than enquiring about what may have been said to LP, and referring to allegations in the dismissal letter that had not been put to Miss Mbuyi during the disciplinary hearing.
Although not a binding decision (because it is Tribunal level only), this case is another example of the difficulty employers can face in deciding how to deal with situations where protected characteristics such as religion/belief and sexual orientation conflict. The decision in this case was very fact specific, and in this case the Tribunal found that the dismissal was not proportionate, although if the employer had handled things differently it was possible that there could have been a different outcome. Employers should seek advice at an early stage, even where the employee does not have sufficient service to bring an unfair dismissal claim, particularly if there is a risk of discrimination.
We can help with advising on discrimination issues in the workplace. If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).
Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.