Legal Corner: Christian dismissed for telling colleague that ‘homosexuality is a sin’ the victim of discrimination

28th Aug 2015

The Employment Tribunal were recently asked to consider a case brought by Miss Mbuyi against her former employer Newpark Childcare (Shepherds Bush) Ltd (Case No 3300656/2014).

Miss Mbuyi was employed as a nursery assistant. She was a born again Christian. One of her colleagues, Miss X, was a lesbian. During a break on a staff training day soon after the Christmas break, Miss X asked Mbuyi about how she had spent her holiday and Miss Mbuyi referred to some of the activities she had undertaken with her Church. Miss X mentioned that it must be nice for her to have the Church as an ‘extended family’ given that Mbuyi’s own family lived in Belgium. The conversation moved onto why Miss X did not attend Church, and she said that she would not be interested in attending until the Church recognised her relationship such that she could get married there. MMbuyi then discussed her understanding of biblical teaching on homosexuality, and the fact that it was a sin. However she also said that Miss X need not worry as everyone sins.

Miss X was upset following this conversation and left the room. Mbuyi was asked to attend a disciplinary hearing related to the conversation two days later. It is usual practice, where an issue such as this arises, for an investigation to be carried out in the first instance, and both parties, and any other potential witnesses, asked to give their accounts of what occurred, before a decision is made on what further action is required. This did not occur. At the hearing, Mbuyi was asked about her conversation with Miss X. It was clear from her account that it was Miss X who had raised Mbuyi’s Church attendance, and her own sexuality, during the conversation. She said that Miss X had asked her if she would be welcomed in Church and that she had told Miss X that God was not ok with what she was doing, i.e. living with a woman. However, she told the disciplinary hearing that she had said that if God was against Miss X, He was also against her as ‘we are all sinners’. She explained that she had merely explained what was contained in the bible and whilst she was not a homophobic person, she believed that homosexuality was a sin. Mbuyi was then asked further about her beliefs; which other sins she believed God didn’t like (she gave an example of lying) and how she would treat the child of homosexual parents who attended the nursery (she said that they were not be hated and that she would look after them, but if she was approached by the parents she wouldn’t lie to them). Mbuyi was then asked if she thought Miss X was ‘wicked’. Mbuyi answered by saying that ‘Yes, we are all wicked’.

Mbuyi was dismissed without any further investigation being carried out, on the basis of her comments made at the disciplinary hearing. Her subsequent appeal was not upheld and she therefore brought a claim in the employment tribunal. She was not eligible to bring a claim for unfair dismissal, since she had not been employed for two years. However, she did bring a claim of religious discrimination, specifically that she had been discriminated against because of her religious belief that homosexuality was a sin. This claim was successful – the employment tribunal were very critical of the approach taken by the employer against  Mbuyi. They differentiated between the holding of such a belief and the expression of that belief. Expressing that belief in a way that discriminated against Miss X was clearly inappropriate and would have justified a decision by Mbuyi’s employer to dismiss her. But expressing strongly held religious beliefs in a way that did not discriminate was not capable of justifying a dismissal. The fact that the employer did dismiss, and the manner of dismissal, suggested that she was right when she argued that she had actually been dismissed for holding the belief itself. This was supported, according to the tribunal, by the fact that a number of the questions put to Mbuyi in her disciplinary hearing related to her beliefs rather than what had actually occurred between herself and Miss X, especially the question about whether Miss X was wicked, which the employer relied upon in its letter of dismissal. There was never any suggestion that Mbuyi had said, or even inferred to Miss X, during their conversation, that she was wicked, and the fact that emphasis was placed on it demonstrated that the employer had discriminated against Mbuyi on the grounds of her belief.

This case is a clear example of the distinction which needs to be drawn between someone holding a particular belief, and the way that they manifest this in the workplace. Their colleagues have a right not to be harassed or discriminated against if their beliefs differ, but at the same time an individual is allowed to hold religious beliefs and not be discriminated as a result.

Safia Tharoo, Barrister, 42 Bedford Row, London

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