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:
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This update is for general guidance only and does not constitute definitive advice.