Competing Protected Characteristics

Posted in : HR Updates on 8 July 2015
Helen O'Brien
Personnel and Training Services
Issues covered:

In Mbuyi v Newpark Childcare, the employment tribunal considered whether an evangelical Christian had been discriminated against when she was dismissed for expressing negative views on homosexuality.

Ms Mbuyi was a nursery worker at Newpark Childcare for nine months before her dismissal. Between September and December 2013, she was alleged to have made a couple of inappropriate comments to LP (a colleague who is lesbian) and given her a bible.

On 6 January, LP initiated a discussion with Ms Mbuyi about whether she would be welcome in her church. She replied that homosexuality was a sin and God would not like what she did. LP was upset and asked her manager if she could be moved but did not make a formal complaint. Ms Mbuyi was called to a disciplinary hearing in respect of alleged discriminatory conduct in relation to co-workers, following which she was dismissed for harassing LP and making inappropriate comments about her sexuality.

She brought claims for direct and indirect discrimination and harassment on the grounds of her religion or belief. The tribunal upheld direct and indirect discrimination but found no evidence of the harassment, in fact, she welcomed the opportunity to tell the gospel, and so the conduct was not unwanted.

The tribunal made it clear that it did not consider the nursery was anti-Christian. The issues arose as a result of the manifestation of her belief that homosexuality was a sin, which was a belief capable of attracting protection under the Equality Act. The tribunal found the employer made many procedural mistakes that would have made her dismissal unfair if she had had sufficient continuity of service.

These included not giving her details of allegations in advance and reliance on matters that had not been put to her during the hearing. She was asked questions such as whether she considered LP to be wicked and although she answered “we are all wicked” she was taken to have said LP was wicked as a result of her sexuality.

The tribunal concluded that the nursery may have made stereotypical assumptions about her beliefs, so that anything she said was related to LP’s sexuality and was construed negatively related to that belief. As the employer was unable to provide a non-discriminatory explanation for its failings and the tribunal did not consider a secular employee would have been treated in the same way, particularly as LP had not been censured for her part in starting the conversation, the claim of direct discrimination was upheld.

The tribunal also upheld the indirect discrimination claim. It found the provision, criterion or practice was that employees should not express adverse views on homosexuality or state that it was a sin. This placed Ms Mbuyi and those sharing her beliefs at a particular disadvantage that required objective justification. Although the nursery’s aim of providing its services in a non-discriminatory way was legitimate, the absence of any equivalent treatment for LP meant that dismissal was not proportionate.

Practical considerations

It can be very difficult for an employer to balance rights relating to competing protected characteristics when these conflict in the workplace. This is only a tribunal decision and is very fact specific as much is based on the employer’s procedural failings.

It is, however, a reminder to employers to be aware of the danger of making decisions based on stereotypical assumptions about the beliefs of evangelical Christians. It also shows the importance of focusing on ensuring a fair procedure is followed, regardless of whether the employee has sufficient service to bring an unfair dismissal claim. Employers should also ensure consistent treatment for all employees

This article is correct at 19/10/2015

The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.

Helen O'Brien
Personnel and Training Services

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