Jul 2015
Author: David Seals
In the recent case of Mbuyi –v- Newpark Childcare (Shepherds Bush) Limited an employment tribunal found that a Christian nursery worker had been unlawfully discriminated against when she was dismissed for expressing negative views of homosexuality at work in relation to a colleague.
Facts
M’s employment began in April 2013. A colleague of hers (LP), also a nursery worker, was a lesbian living with another woman. Their employer relied on various matters as part of the disciplinary case against M including that:
- In September 2013, M said to LP “oh my God, are you a lesbian?”
- In November 2013, M gave LP a Bible as a gift (M later gave another colleague a pro-Christian book as a secret Santa gift).
- On 6 January 2014 in a conversation with LP, M told her that her understanding of the Bible was that homosexuality was a sin. LP was upset by this and spoke to her manager who bought it to the attention of one of the directors.
The nursery had already planned to invite M to a disciplinary hearing regarding her late attendance on a staff training day. Following the incident on 6 January 2014, they added the allegation of “alleged discriminatory conduct in regard to co-workers” but gave no further details.
At the disciplinary meeting, M explained that on 6 January 2014, LP had raised the issues of religion and her sexuality and had asked M if it would be welcomed at M’s church. M admitted that she had said that in accordance with her Christian beliefs: “God was not ok with LP living with a woman”.
The disciplinary panel then questioned M regarding her beliefs asking her about “the type of sins God does not like” and questioning her regarding how she would behave in a hypothetical situation where a child with two mothers came to the nursery.
The panel asked M whether she thought LP was wicked to which she replied “Yes we are all wicked”.
No further investigation was carried out and M was dismissed for gross misconduct for harassment of LP.
M claimed direct and indirect discrimination based on religion/belief in the employment tribunal.
Decision
The tribunal found M had been discriminated against directly and indirectly on the grounds of her religion/belief. It found that the nursery was not anti-Christian but it had mishandled the matter. Although this was not an unfair dismissal case (as M did not have the requisite two years’ service) there were multiple procedural failings that made the procedure unfair including that:
- M had not been given details of the harassment allegation prior to the disciplinary meeting.
- There had been no investigation.
- In the disciplinary hearing, the focus had turned away from what had actually happened to what M’s beliefs were and M’s subsequent replies then formed part of the decision to dismiss.
The significant procedural failings were enough to persuade the tribunal that there was a prima facie case that M had been discriminated against because of her religious beliefs. In such cases, the burden of proof shifts to the employer to persuade the tribunal that there was a non-discriminatory reason for its treatment of the Claimant. However, in this case the nursery could not offer any explanation for its handling of the disciplinary procedure including going beyond what had actually happened and questioning M about her religious beliefs.
On the indirect discrimination claim the tribunal found that the nursery had a legitimate aim in providing its service in a non-discriminatory manner for the benefit of staff, children and their families. However, the dismissal of M in the circumstances was not a proportionate means of achieving this aim. It might have been different if both LP and M had been asked to confirm that discussing matters of religion and sexuality at work were inappropriate and M had refused to do so.
What does this mean for you?
This case illustrates the difficulties employers can find themselves in where they try to discipline staff regarding discussions at work around contentious subjects like religion and sexuality. Here, the employer came unstuck when it carried out a defective disciplinary procedure and, in what appeared to be a fatal error, departing from examining what had actually happened and instead delving into questions around the employee’s religious beliefs.
We regularly advise clients on carrying out disciplinary procedures and on discrimination issues. If you have a query on this or any other employment related matter please contact David Seals at [email protected] or 01306 502218 or your normal contact in the employment team.
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