Religion & Sexuality

In the past few years there have been a number of cases regarding individuals expressing their religious beliefs in the workplace and to what extent this should be accommodated by the employer, the most famous perhaps being the case of Eweida which concerned the wearing of a cross by a British Airways flight attendant over her uniform.

The latest case to touch upon this issue is Mbuyi v Newpark Childcare (Shepherds Bush) Ltd, which was heard by the Watford Employment Tribunal. Miss Mbuyi, an evangelical Christian, was employed as a nursery assistant. During a conversation with one of her colleagues, LP, who is a lesbian, Miss Mbuyi expressed her belief that homosexuality was a sin and that God did not approve of her living with another woman. LP complained and the Employer treated this as harassment on the grounds of sexual orientation. In response to this, Miss Mbuyi stated that she was simply responding honestly to a question posed by LP. The Employer dismissed Miss Mbuyi on the grounds that her comments constituted unlawful discrimination and that she had targeted LP because she was a lesbian.

The Tribunal decided that, in context, Miss Mbuyi had not discriminated against LP in the comments she made. The conversation in question was found to have been instigated by LP in that she had asked Miss Mbuyi about her Church and whether, given her sexual orientation, she would be welcomed and if God was okay with her living with another woman, to which she responded that God would not be okay with that. Miss Mbuyi also said to LP that “we are all sinners”. These points were not investigated further by the Employer to see if LP agreed with this version of events and why she may have asked these questions.

A further problem for the Employer was the line of questioning taken during the disciplinary hearing, where Miss Mbuyi was asked whether she thought LP was wicked, to which she responded “Yes, we are all wicked”. This appeared to be questioning what she believed rather than how she expressed her beliefs in the workplace. In addition to this, the Employer had taken into account a number of historic incidences which, on the evidence available to the employer at the time, could not have been reasonably upheld.

Given the procedural failings in the process, the unsubstantiated allegations and the line of questioning taken, the Tribunal took the view that the Employer had made a number of stereotypical assumptions about Miss Mbuyi and her beliefs in that any comments or actions by Miss Mbuyi which could be connected to LP’s sexuality were to be construed negatively, with the employer’s approach suggesting that they did not agree with her views and took action accordingly. No action was taken against LP for taking the conversation into what could be perceived to be an inappropriate arena. The Tribunal therefore held that Miss Mbuyi’s dismissal was because of her beliefs and was therefore discriminatory on the grounds of her religion.

This can be a very tricky area to deal with. On the one hand, individuals are entitled to hold and express their beliefs. However, care must be taken not to infringe upon other people’s rights by doing so. The Tribunal gave some valuable guidance in this matter, stating:

“The [Employer] should, perhaps, have involved LP as well as [Miss Mbuyi], when considering responsibility for taking the conversation into an inappropriate arena. Both could have been asked to confirm that discussing matters of religion, sex and sexuality at work was inappropriate and would not be repeated.”

If a situation arises where an individual has expressed a view based on, for example, their religious beliefs and someone has taken offence, it will be necessary to investigate the matter fully to establish the full facts before deciding on whether any action is required.

Director of Legal Services

James Tamm

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