In Mbuyi v. Newpark Childcare (Shepherds Bush) Limited, the Claimant argued that she had suffered discrimination on the basis that she was dismissed, as a consequence of her expressing negative views about homosexuality.
Ms Mbuyi was an evangelical Christian who was dismissed for gross misconduct in January 2014. One of Mrs Mbuyi's ex-colleagues was a lesbian and living in a civil partnership with another woman. There were many incidents and passing comments made by Ms Mbuyi to her colleague, including telling her colleague that homosexuality was a sin. A disciplinary meeting was held with the main allegation being "alleged discriminatory conduct in regard to co-workers", following which Ms Mbuyi was summarily dismissed. Ms Mbuyi did not have the relevant service requirements to bring an unfair dismissal claim in the Employment Tribunal, but instead brought a claim for direct and indirect discrimination on the grounds of her religious beliefs. She also lodged a claim for harassment.
The employment tribunal held that Ms Mbuyi had been discriminated against both directly and indirectly. It found that she had been dismissed for manifesting her religious beliefs i.e. for making negative comments about homosexuality. Importantly the Tribunal did not believe she had been dismissed for being a Christian but for the way in which she had manifested her religious beliefs. Ms Mbuyi claim for harassment was not upheld because it appeared that the conduct had not been unwanted.
Crucially, the Tribunal also found that there had been numerous procedural failings on the part of the employer during its disciplinary process. In particular, Ms Mbuyi was asked general questions about her beliefs during the disciplinary hearing and her responses were then used to support the dismissal. As a result of these procedural failings, the Tribunal took the view that a prima facie case of discrimination had been shown and the burden of proof then moved to the employer to show that their action, in dismissing Ms Mbuyi, was not discriminatory.
While upholding Ms Mbuyi's discrimination claim, the Tribunal did make it clear that inappropriate manifestation of religious beliefs could, in some circumstances, be a fair reason for dismissal.
This is not the first time that the Tribunal has had to grapple with the issue of balancing an employee's right to hold and express religious beliefs and the rights of others in the work place. In the case of McFarlane v. Relate Avon Limited, a Christian relationship counsellor was dismissed because he did not feel he could provide "psycho-sexual counselling" to same-sex couples as it conflicted with his religious beliefs. The Tribunal in that case found that the employer held a legitimate aim of providing all counselling services to all sections of the community regardless of their sexual orientation and therefore the Tribunal concluded that his dismissal was fair. The Employment Appeal Tribunal agreed and held that the employer should not have to change their practices and policies due to an employee's failure to comply with policies that are fundamental to the employer's ethos, that being their equal opportunities policy.
A more recent case in 2013 demonstrates the further difficulties presented where the expression of religious belief occurs on social media, outwith work. In the case of Smith v. Trafford Housing Association, Mr Smith was a practising Christian who held a managerial position with Trafford Housing Association. He commented on Facebook that the fact gay church marriages were set to be approved was an "equality too far". The Company launched disciplinary investigations which resulted in a finding of gross misconduct, Mr Smith's demotion and a reduction in his pay. The main question arising from this case was whether Mr Smith's postings on social media amounted to a breach of the Company's Code of Conduct and/or their Equal Opportunities Policy. The High Court in this case held that there was no reputational damage to the employer and that the comments made could not have brought the company into disrepute in any way. The Court highlighted the fact that it was clear that Mr Smith used Facebook for personal and social reasons and not in a work-related context. The Court also said that individuals have the right to promote their religious and political beliefs (as long as this is done lawfully) and although employers can legitimately prohibit these activities in the work place or within a work-related context, they would find it much harder to prove their legitimacy in restricting such activities in the employee's personal life.
The key point for employers to take from these cases, is that it will very much depend on the particular facts of the case, whether or not an employee's manifestation of their religion can justify disciplinary action and therefore, knee jerk reactions must be avoided.