Discriminatory dismissal of nursery assistant on grounds of religion

In Mbuyi v Newpark Childcare (Shepherds Bush) Ltd the Watford Employment Tribunal held that a Christian nursery assistant who was dismissed for expressing her belief that homosexuality is a sin was discrimination on grounds of religion.

Facts

The Claimant, a Christian nursery assistant, worked with a lesbian colleague and had discussed with her attending church. The colleague stated that she would not attend church unless it would recognise her civil partnership. The Claimant responded that God did not approve of her relationship and added that “we are all sinners”. The Claimant was then called to a disciplinary hearing and the employer concluded that the remark, which had upset her colleague, was gross misconduct.

There were a number of procedure failings with the disciplinary procedure adopted such as there was no investigation, the Claimant was not given notice of the allegations in advance of the hearing, the Claimant was not told that dismissal was a potential outcome, a witness to the incident was involved in the decision making process and the chair of the disciplinary hearing was also involved with the decision making process at the appeal stage.

The Claimant brought a claim against her employer for harassment and direct and indirect discrimination on grounds of religion or belief under the Equality Act 2010. The Claimant lacked the qualifying service to bring a claim of unfair dismissal.

The Tribunal found that there was no evidence of harassment because the conduct did not appear to have been unwanted. The Claimant’s evidence to the tribunal was that she was eager to discuss the topic of homosexuality and her religion.

However the Claimant’s allegation of direct and indirect discrimination succeeded.

The tribunal found that the employer did not treat the Claimant in the manner it did because she was a Christian. However, the questions at the disciplinary hearing related to the Claimant’s belief and the nursery could offer no explanation for the belief-based questions put to her at the hearing.

The tribunal found that the Claimant’s comments were genuinely held, worthy of respect in a democratic society, not incompatible with human dignity and not in conflict with the fundamental rights of others. The Tribunal also found that as there was a lack of investigation and evidence the employer had made stereotypical assumptions about the Claimant based on the fact that they knew she was a Christian and had prejudged the outcome of the investigation into the exchange. The tribunal therefore concluded that direct discrimination had occurred.

With regard to the allegations of indirect discrimination, the employer agreed that it applied a provision, criterion or practice i.e. to provide its service in a non-discriminatory way, for the benefit of staff, infants and their families alike; this was a legitimate aim. However, this would have a disparate impact on Christians holding similar views to those of the Claimant. The next question the tribunal had to ask was whether the dismissal was a proportionate means of achieving that legitimate aim. The employer had an absolute ban on discussing such matters as homosexuality and religion at work; however this had not been made clear to the Claimant. Given the substantial procedural fallings on the part of the employer, both in relation to the disciplinary procedure and in implementing its policy on workplace relations, the Tribunal held that dismissal was not a proportionate means of achieving the legitimate aim.

Comment

The case demonstrates the need for employers to take a more objective approach to disciplinary hearings and to pre-empt scenarios such as these arising by, for example, making it clear to all staff that these discussions are not appropriate in the work place. It is important also for employers to ensure that they carry out a full investigation into the allegations so any conclusions are based on clear, recorded evidence. This will avoid allegations that the employer based it’s findings on stereotypical assumptions which could lead to allegations of direct discrimination being upheld.

For more information, please contact a member of the Employment Team.

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