In the recent case of Mbuyi v. Newpark Childcare (Shepheards Bush) Ltd, an Employment Tribunal found that a Christian nursery employee was directly and indirectly discriminated against by her employer on the grounds of her religion or belief when it dismissed her for expressing allegedly negative views about a colleague’s homosexuality. The fundamental issue in this case was when, whether and how such a belief may be manifested, given the interplay with the right not to be discriminated against because of sexual orientation.

Ms Mbuyi was an Evangelical Christian and was employed as a nursery worker. One of Mrs Mbuyi’s former colleagues was a lesbian and living in a civil partnership with another woman. There were several incidents and passing comments made by Ms Mbuyi to her colleague, including telling her colleague that homosexuality was a sin. This consequently led the employer to commence disciplinary proceedings against Ms Mbuyi. 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. Although Ms Mbuyi did not have sufficient qualifying service to bring a claim for unfair dismissal, Ms Mbuyi brought a claim for direct and indirect discrimination on the grounds of her religious belief. She also brought a claim for harassment; however the tribunal found no evidence that the conduct was unwanted by the employee, who welcomed the opportunity to discuss her religious belief.

The employment tribunal found that Ms Mbuyi had been discriminated against both directly and indirectly, on the grounds of her religious belief that homosexuality is a sin. It was determined that this belief attracts the protection of the Equality Act 2010.

Although Ms Mbuyi did not have sufficient qualifying service to be eligible to bring a claim for unfair dismissal, the tribunal found that she was not treated fairly during the disciplinary process. Specifically, she was not given the details of the allegations prior to the disciplinary hearing and was previously not warned that her actions could result in dismissal. There was no investigation and the dismissing officer was the same individual who had also conducted the appeal.

Whilst these procedural failings did not, on their own, make out a claim for discrimination, they contributed to an inference of discrimination in the absence of alternative explanation. The Tribunal held that Ms Mbuyi’s employer had made stereotypical assumptions about her Christian beliefs, which led it to interpret her words negatively and to assume that she was being offensive about homosexuals when there was no basis for that conclusion. Accordingly, the tribunal took the view that a prima facie case of discrimination had been made out. The burden of proof then shifted on to the employer to demonstrate that the decision to dismiss Ms Mbuyi, was not discriminatory. Ms Mbuyi’s employer could not offer an acceptable non-discriminatory explanation for the procedural failings and the Tribunal therefore concluded that the dismissal constituted direct discrimination on the grounds of religious belief. Furthermore, the tribunal 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 found that it was incumbent on the employees not to discuss such issues during work and that this should have been explained to them with a warning that any further conversation of that nature would lead to the disciplinary action (where dismissal may have been appropriate).

This case is a useful reminder that conflicting views and beliefs at work is burdened with many complications and whilst the employee may not have qualifying service to bring a claim for unfair dismissal, there is still nonetheless a need for careful enquiry in any potential disciplinary situation.