SUMMARY: When two protected characteristics clash, an employer must tread carefully. The recent case of Mbuyi v Newpark Childcare demonstrates some of the hurdles an employer must overcome before dismissing where the protected characteristics of religious belief and sexual orientation conflict.
Under the Equality Act 2010, individuals are protected from detrimental treatment because of their religious belief or sexual orientation (amongst other characteristics).
Religious belief and sexual orientation are two characteristics which have the potential to conflict, as some religious groups have strong beliefs on homosexuality. An employer has the unenviable task of balancing these competing rights.
The Tribunal Decision
The tribunal held in the case of Mbuyi v Newpark Childcare that Miss Mbuyi had been discriminated against because of her religious belief.
Miss Mbuyi was dismissed for gross misconduct, being her harassment of another employee (“LP”). The dismissal letter referred to her entering into a conversation in the workplace with LP and the topic moved on to the issue of homosexuality… during that conversation Miss Mbuyi stated that homosexuality was a sin. The dismissal letter also upheld an allegation that Ms Mbuyi had, 4 months previously, made “inappropriate comments” to LP concerning her being a lesbian.
Miss Mbuyi did not have the required 2 years’ service to bring an unfair dismissal claim.
Where did the employer go wrong?
The tribunal identified a number of ways in which the employer acted, which lead to its conclusion that the employer discriminated against Miss Mbuyi. The following are key for employers to note:
- The employer did not conduct an investigation.
The employer invited Miss Mbuyi straight to a disciplinary hearing without having conducted an investigation. If the employer had conducted an investigation it might, for example, have seen an email from an employee which put forward a version of events of a conversation about religion and sexual orientation. The tribunal commented that this email had not, however, found its way to a director at the disciplinary hearing by the time of the disciplinary hearing or the time of the dismissal.
The employer could also (amongst other matters) have investigated Miss Mbuyi’s contention that the other employee had approached her, not vice versa, but it did not do so.
- The employer did not put all of the allegations it relied upon to dismiss Miss Mbuyi to Miss Mbuyi.
For example, the employer asked Miss Mbuyi in the disciplinary hearing “Do you think LP is wicked?” Miss Mbuyi responded “yes we are all wicked”. The employer later linked this to homosexuality in the dismissal letter, but did not do so at the time of the disciplinary hearing. It did not appear that Miss Mbuyi was ever asked if she stated in terms that homosexuality was, in her belief, a sin.
- The employer did not appear to take into account the evidence that LP approached Miss Mbuyi to ask her about religion, rather than Miss Mbuyi approaching LP. Miss Mbuyi was clear in this case that LP had:
a. first raised Miss Mbuyi’s church;
b. first raised her own sexuality and lifestyle;
c. asked if she would be welcomed at church; and
d. specifically asked what Miss Mbuyi believed God thought about her living arrangements.
- The employer did not take any action against LP. The tribunal commented that both could have been asked to confirm that discussing matters of religion, sex and sexuality at work was inappropriate and would not be repeated.
- The employer did not refer to Miss Mbuyi’s gift of another religious book to another employee, which the tribunal commented would tend to support the proposition that Miss Mbuyi would take opportunities to share her faith with anyone.
- The employer’s reasoning in the dismissal letter did not appear to be supported by evidence. It stated that she had specifically targeted LP because of her sexual orientation and that this constituted harassment. The tribunal commented that this was “an untenable finding on the evidence of [Miss Mbuyi], which was allegedly all the [employer] considered”. The employer should ensure that the evidence supports its conclusion.
- The employer did not give Miss Mbuyi a warning.
- The same person was heavily involved in both the dismissal and appeal.
What should an employer do?
Following this case, top tips for an employer who is considering dismissal where a protected characteristic is an issue are as follows:
- Carry out a reasonable investigation.
- Put all allegations to the employee which may be relied upon when dismissing.
- Do not make any stereotypical assumptions.
- Ensure that points in the employee’s favour, as well as those which go against the employee, are taken into account and referenced in any dismissal letter.
- If a response in a disciplinary hearing could be a reason for dismissing an employee, this allegation should be put to the employee before a decision to dismiss them is taken.
- Treat employees consistently; if two employees are involved in an inappropriate conversation, consider whether disciplinary action should be taken against both of them.
- Be clear about the behaviour that is expected from employees and try to seek agreement about appropriate behaviour going forwards.
- Consider whether a warning should be given to an employee rather than dismissing them.
- If dismissal is a possible outcome, ensure that the employee is aware of this before the disciplinary hearing takes place.
- Ensure that the reason for dismissing the employee is supported by evidence.
- Different people should hear the disciplinary hearing and any appeal.
The reason for dismissal is absolutely key when concepts of religious belief and sexual orientation are in issue. It is interesting that the tribunal commented in this case that it may be that the employer would have been justified in dismissing for Miss Mbuyi’s refusal to actively engage in reading certain literature or otherwise promoting family units other than those formed by husband and wife. Whether this could be justified would depend on all the circumstances.
It should be noted that this case is only an employment tribunal decision and is therefore not binding. A case with similar facts could be decided in a different way.
Mbuyi v Newpark Childcare (Shepherds Bush) Ltd ET/3300656/14
For more details about issues of religion, belief, sexual orientation or other protected characteristics please contact:
+44 (0) 808 172 93 22
This update is for general guidance only and does not constitute definitive advice.
SUMMARY: HSBC has announced it is cutting 8,000 UK jobs in a global reorganisation. There is no doubt that planning has been undertaken for such large scale redundancies, but what are the key steps that any business should take when making redundancies?
HSBC recently announced that as part of a global reorganisation, it will axe 8,000 jobs in the UK. Many businesses will have to make redundancies at some point, whether it is part of a reorganisation or a site or workplace closure. What are the key steps an employer should take when making redundancies?
- Ascertain the current situation – conduct an audit
Before taking any decision about embarking upon redundancy consultation, an employer needs to understand its current structure and terms and conditions of employment by conducting an audit. In particular, it should consider the following:
a) Does it have an up to date organisation chart?
b) Does it have up to date contracts of employment for all employees?
c) Are all employees’ job descriptions up to date?
d) What are the terms of the contracts of employment? In particular, what notice period are employees entitled to receive from the employer?
e) What length of service do employees have? Employees with less than 2 years’ service are not entitled to a statutory redundancy payment and generally do not have a right to bring a claim for unfair dismissal.
f) What age are employees? This is relevant for calculating any statutory redundancy payments.
g) Is there a collective agreement with a trade union and does it include provisions relating to redundancy?
h) Check policies and procedures are up to date and particularly consider whether there is any policy on the process for redundancy consultation and how much employees may be paid when they are made redundant. There may be an enhanced redundancy pay scheme, which entitles employees to be paid more than statutory redundancy pay.
- Consider the reasons for making redundancies
The employer must have a strong rationale for making redundancies and it is sensible to set this out in writing in the form of a proposal. The reasons must relate to:
a) business closure (closure of the business altogether);
b) workplace closure (closure of one of several sites, or relocation to a new site); or
c) diminished requirements of the business for employees to do work of a particular kind (this is generally the reason for a restructure).
It is usually easy for an employer to demonstrate the first two reasons, but the third reason may require some further exploration and gathering of information to support it.
- Identify the pool for selection
A pool is the group of employees from which an employer will select those who are to be made redundant.
Before selecting an employee or employees for dismissal on grounds of redundancy, an employer must consider what the appropriate pool should be. Where the employer recognises a union, it will usually be expected to discuss the choice of pool with the union. A pool can be made up of one person in some cases.
Carefully identifying the pool for selection is likely to be most important in cases where there are diminished requirements for employees to do work of a particular kind.
If an employer is unsure what an appropriate pool for selection would be, we can assist in identifying this.
There are two types of consultation; collective and individual. Individual consultation must always be carried out, even if collective consultation is carried out. Collective consultation obligations (in particular the length of the consultation period) depend on the number of individuals to be made redundant.
In the case of HSBC, it is likely that it will need to carry out collective consultation which must be carried out if an employer proposes to make redundancies of 20 or more employees within a period of 90 days or less. This is one of the reasons it is key for an employer to establish how many redundancies it is proposing to make before starting consultation.
Although there are various steps an employer will need to follow when carrying out consultation, one essential criterion, whatever the type of consultation, is that an employer can show that the consultation is meaningful.
Minimum areas consultation should cover
In all redundancy situations, consultation should cover as a minimum the following areas:
a) the reason for the proposed redundancies;
b) the proposed pool for selection;
c) the method of selection (eg. objective selection criteria); and
d) ways of avoiding redundancies.
If consultation obligations are not satisfied, employers risk potentially expensive unfair dismissal claims being brought against them and/or a requirement to pay significant financial awards (known as protective awards) of up to 90 days’ gross pay per employee for failing to collectively consult.
Before starting consultation, we suggest an employer considers the following:
a) The number of employees to be made redundant.
b) Where those employees are based (i.e. are they at one site or different sites?)
c) Whether there is a recognised trade union.
d) Whether there is a collective agreement with a trade union containing obligations relating to collective consultation.
e) Whether there is a need to elect employee representatives (which may be necessary to satisfy collective consultation obligations).
f) What the timeframe is likely to be for the consultation period prior to making redundancies.
We suggest that employers seek legal advice if they intend to dismiss by reason of redundancy, so that an appropriate process can be followed to avoid a claim of unfair dismissal and/or a claim for a protective award. Our advice will be most effective if an employer has already carried out the suggested steps in “ascertain the current position” above; we can assist an employer in carrying out these steps and conduct an audit of existing documents.
For more details about how to carry out redundancies please contact:
+44 (0) 1604 871143
This update is for general guidance only and does not constitute definitive advice.
SUMMARY: In Begum v Pedagogy Auras UK Ltd, it was held that a nursery had not discriminated against a Muslim woman who wanted to wear a jilbab to work, when it required staff not to wear garments that might constitute a tripping hazard to themselves or the children in their care.
Background to case
A trainee nursery assistant (Ms B) was an observant Muslim whose religious belief required her to wear a garment that reached from her neck to her ankles (a jilbab). After a half-day trial, Ms B was invited to interview. She wore a jilbab on both the trial day and the interview day. At the time of the interview, the nursery asked her whether she might wear a shorter jilbab to work. The nursery indicated to Ms B that whatever garment she wore, it could not constitute a tripping hazard for children or staff.
Ms B subsequently refused to take the job and reported that she had been insulted by the nursery’s approach to uniform, which went against her religious beliefs.
Ms B brought a claim in the employment tribunal for discrimination on grounds of religion or belief.
The Employment Appeal Tribunal upheld the decision of the employment tribunal which was that Ms B’s discrimination claim was unsuccessful.
It was noted that there was another member of staff at the nursery who wore a jilbab and 25% of the workforce were Muslim women. It was clear that this was a workplace in which jilbabs were permitted, so long as they did not constitute a tripping hazard. The Employment Tribunal had found that at no point was Ms B told she could not wear a jilbab while working at the nursery.
The nursery demonstrated a tolerance towards employees’ religious beliefs, but had to balance a potential employee’s right to manifest their religious belief with its health and safety obligations and did so successfully in this case; it was found that it had not discriminated against Ms B. However, in other instances, the enforcement of a dress code can prove more problematic for employers given the protection that employees have under the Equality Act 2010.
The Equality Act 2010 essentially gives employees the right not to be directly or indirectly discriminated against on grounds of a protected characteristic. Protected characteristics include age, sex, race, religion or belief, sexual orientation, gender reassignment, marriage or civil partnership, pregnancy or maternity, race and disability.
Ms B alleged that she had been indirectly discriminated against on grounds of the protected characteristic of religion or belief.
Indirect discrimination on grounds of religion or belief occurs where:
- An employer applies to an employee a provision, criterion or practice (PCP).
- The employee has a particular religion or belief.
- The employer applies (or would apply) that PCP to persons not of the same religion or belief as the employee.
- The PCP puts or would put persons of the employee’s religion or belief at a particular disadvantage when compared to other persons.
- The PCP puts or would put the employee at that disadvantage.
- The employer cannot justify the PCP by showing it to be a proportionate means of achieving a legitimate aim.
Although in this case, it was held that there was no discriminatory PCP (i.e. no indirect discrimination), if there had been a discriminatory PCP, the employer may well have been able to justify the discrimination by showing that that:
- it had a legitimate aim (for example, compliance with health and safety obligations); and
- the means chosen (the requirement to wear a garment which did not present a tripping hazard) for achieving that objective were proportionate.
What can employers require in terms of dress code?
The requirements an employer is permitted to include in its dress code are likely to depend on the nature of an employer’s business, the extent to which there are health and safety hazards in its work, the level of employees’ contact with customers and any requirement to wear a uniform.
An employer should keep potential issues of discrimination in mind when formulating a dress code. Regard should be had to possible religious sensitivities, and also to the principle that, while an employer may have different rules for men and women, the rules should not be more stringent for one group than another.
In this case, it was found that the employer did not ban ankle-length jilbabs but that Ms B had worn a flowing garment. The employer’s concern was that this could constitute a tripping hazard and was acutely aware of its health and safety obligations. If the employer had banned jilbabs completely, this is likely to have been indirectly discriminatory; the employer would then need to justify the indirect discrimination and such a ban may not have been a proportionate means of achieving a legitimate aim (see above in relation to “law” for justifying discrimination).
An employer may well succeed in justifying such indirect discrimination on the grounds of health and safety where an employee will, for example, be working with children. However, there may be some work environments where there are no health and safety considerations which could justify such a ban.
It is likely to be more difficult for an employer to be able to justify not permitting an employee to wear a head scarf (hijab) than a full length garment (jilbab). Although not UK law, Abercrombie & Fitch discovered this to its detriment when there was a recent American Supreme Court decision against it following its refusal to hire a Muslim woman because she wore a head scarf. Abercrombie and Fitch said that the scarf clashed with its dress code, which called for a “classic East Coast collegiate style”. We consider this argument would be unlikely to justify discrimination if it occurred in the UK.
We advise that all employers consider whether to have a written dress code policy. The policy could, for example, include a provision that employees may wear appropriate religious and cultural dress unless it creates a health and safety risk to the employee or any other person.
Begum v Pedagogy Auras UK Ltd (t/a Barley Lane Montessori Day Nursery) UKEAT/0309/13
For more details about dress code and if you would like us to draft a policy for your business, please contact:
+44 (0) 1604 871143
This update is for general guidance only and does not constitute definitive advice.