In the case of Mbuyi v Newpark Childcare (Shepherds Bush) Ms Mbuyi was employed as a nursery worker. She was dismissed after 9 months for gross misconduct on the grounds that she had made various offensive comments to a colleague (a lesbian in a civil partnership with another woman).
Ms Mbuyi brought claims of discrimination and harassment on the ground of her religious belief. The tribunal decided that she had been discriminated against (both directly and indirectly) but it dismissed her harassment claim.
Although Ms Mbuyi did not have the qualifying service to bring an unfair dismissal claim the Tribunal looked carefully at the disciplinary process. It was noted that during the disciplinary hearing Ms Mbuyi’s colleague was the one who had raised the issue of her sexuality and the apparent conflict with Ms Mbuyi’s religious beliefs. However her colleague was not questioned about this.
The Tribunal also noted a number of other significant procedural failings with the disciplinary procedure. Due to these failings Ms Mbuyi was able to establish sufficient facts which led the Tribunal to conclude that discrimination had occurred. The nursery then had to show that the reason for this treatment was unrelated to her religious belief. The nursery could not offer any explanation for the disciplinary failings, as such the Tribunal concluded that this failure constituted direct discrimination on the ground of religious belief.
The Tribunal also found that Ms Mbuyi had been discriminated against indirectly as her dismissal was not “proportionate” in response to the nursery trying to achieve its aim of providing its service in a non-discriminatory way. The Tribunal concluded that it was incumbent on both parties not to discuss these issues during the working environment. This should have been explained to both parties with a warning that any further inappropriate conversation would be dealt with under the disciplinary procedure (where dismissal may have been appropriate).
Finally, in response to the harassment claim by Ms Mbuyi the Tribunal rejected this on the basis that the conduct complained of was not “unwanted”. It appeared, from the evidence that Ms Mbuyi welcomed the discussions with her colleague and had made no complaint regarding this during her employment. This element alone of the decision has come in for criticism as too simplistic.
Whilst some areas of the press have hailed this as a victory for Christian workers employers should note the specific facts of this case. It is not as straightforward as saying that sexual orientation beats holding a religious belief. Balancing conflicting beliefs and views at work is fraught with difficulties and it is important, even if the employee in question does not have the requisite 2 years’ service to bring an unfair dismissal claim, there are likely to be significant risks of discrimination if these issues are not handled very carefully.