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Christian nursery worker’s anti-gay views not ground for fair dismissal

Kimberly Dennis, Leeds employment team

In Mbuyi v Newpark Childcare (Shepherds Bush) Ltd, the Watford Employment Tribunal has found that a devout Christian, who was dismissed for gross misconduct for allegedly telling a lesbian colleague that homosexuality is a sin, was directly discriminated against because of her beliefs. This has been hailed as a landmark decision by some, particularly Christian groups, who believe this will make it easier for Christians to express their views at work.

Gross misconduct

Ms Mbuyi was dismissed for gross misconduct following a conversation with her colleague, who is a lesbian in a civil partnership. Ms Mbuyi stated that “God is not okay with what you do” and “considers homosexuality is a sin.” These comments followed her colleague’s stating that she would not be interested in religion until the church recognised her relationship, such that she could get married there; she was upset by the discussion.

Equality Act 2010

The tribunal found that Ms Mbuyi’s belief that homosexuality is a sin is one that attracts the protection of the Equality Act 2010 and is a belief worthy of respect in a democratic society, not incompatible with human dignity and not in conflict with the fundamental rights of others. The issue in the case was when, whether and how such a belief may be manifested, given the interplay with the right not to be discriminated against because of sexual orientation. The tribunal rejected any attempts to characterise such a belief as akin to racism, and held that there is a clear difference between a racist expressing hateful views and a person of religious conviction expressing their beliefs, however unwelcome.

The tribunal considered that the colleague would not have been able to argue that the comments amounted to harassment for the purposes of the Equality Act, as she had instigated the conversation, “took it into dangerous territory,” and Ms Mbuyi had provided her honest opinion. This meant that the colleague would not have been able to show that the comments were “unwanted conduct,” a requirement of harassment for the Equality Act. However, the term used by the Tribunal was “uninvited”, which would have been to misstate law, had the colleague been pursuing a claim. The tribunal went on to find that “the law would fall into disrepute if an individual could ask a question, knowing the likely response and, on receiving it, however genuinely upset, claim it was unwanted [conduct] and hence harassment.”

Religious discrimination

Factoring in several procedural deficiencies, the tribunal concluded that the decision to dismiss had been based on a stereotypical view of evangelical Christians and ruled that Ms Mbuyi had been discriminated against on the basis of her religious beliefs.
This decision comes after a long line of cases that found that an employee’s (or bakery’s) right to express a particular view did not mean that they could do so with impunity if that view caused offence, namely London Borough of Islington v Ladele, McFarlane v Relate Avon Ltd and the infamous  ‘gay cake’ case.

Protected characteristics

Can it be said that this ruling marks a departure in the treatment in respect of potentially conflicting protected characteristics? Well, as the decision is first instance and therefore not binding on other tribunals, it is certainly not a given and it will be interesting to see the outcome of any appeal.

This case shows the need for careful enquiry in any potential disciplinary situation and that consideration must be given to the context of remarks made at work. It will not be enough for an employer simply to dismiss on the basis of a comment having been made that appears discriminatory.

However, one might question whether the tribunal is right to suggest that a harassment claim cannot be founded upon offence genuinely and reasonably taken at an anticipated response to a question asked cannot found a claim.
The Equality Act provides for a number of protected characteristics, namely: disability; religion or belief; sex; race; age; sexual orientation; gender re-assignment; marriage/civil partnership; and pregnancy/maternity. It would be a mistake for any employer to rest on any assumption that one protected characteristic could take precedence over another and employers should remain alert to the potential for competing characteristics and difficulties this can pose.
For more information on this case or to discuss how the issues here might affect your workplace, contact Kimberly Dennis on 0113 368 7581 or email kdennis@lyonsdavidson.co.uk

Posted on Jun 16th, 2015 by Lyons Davidson