Nursery Assistant dismissed for expressing views that homosexuality is a sin
In Mbuyi v Newpark Childcare Ltd, Ms Mbuyi was dismissed further to engaging in a conversation with a lesbian colleague who she informed “God is not okay with what you do”. In what some may argue was a controversial decision, the Tribunal concluded that Ms Mbuyi was subjected to discrimination because of her beliefs.
Ms Mbuyi commenced employment at the nursery during September 2013 where she worked alongside Mrs P, who is a lesbian. On 6 January 2014, the two of them had a conversation about what they had been up to during the Christams break. Mrs Mbuyi talked about the activities she had completed at the local church which prompted Mrs P to volunteer that she would not attend church until it allowed for gay couples to marry. It was at this point that Mrs Mbuyi stated “God is not okay with what you do”. However, she did then go on to state “we are all sinners”. Mrs P was upset by these remarks and reported them to her employer who invited Mrs Mbuyi to a disciplinary hearing.
At the hearing, Mrs Mbuyi explained that it was Mrs P who had instigated the conversation about the church and sexuality, and that she could only tell the “Bible truth”. The nursery went on to ask Ms Mbuyi how she would handle a child from a same sex couple in her care to which she replied; “they are not to be hated” but I could not lie about my beliefs if approached. The nursery dismissed Mrs Mbuyi describing her conduct as “wholly inappropriate” and made reference to the fact that she did not regret her actions.
Ms Mbuyi issued claims for harassment and direct and indirect discrimination on the grounds of religion or belief. The Tribunal rejected her claim for harassment but came down in her favour in respect of the claims for both direct and indirect discrimination.
The Law (the boring bit)
Her claim for direct discrimination succeeded on the basis that she held a belief that homosexuality is a sin and that this was a genuinely held belief, worthy of respect in a democratic society, not incompatible with human dignity and not in conflict with the fundamental rights of others. The Tribunal noted that Mrs P did not receive any form of reprimand and it was her who initiated the conversation about religion in breach of the nursery’s policies. Her claim for indirect discrimination succeeded on the basis that the nursery had applied a provision, criterion or practice that employees should not express any adverse views of homosexuality. The Tribunal concluded that this placed Mrs Mbuyi at a disadvantage, and the fact that the nursery had not brought the absolute nature of this ban to her attention, meant that it was not a proportionate means of achieving the nursery’s legitimate aim of “providing services in a non-discriminatory way”.
Cases involving the conflict between religious beliefs and homosexuality are some of the most difficult to reconcile. Each case will be dependant on its own facts and will require careful consideration. The problem is that it is not possible to reconcile the difference between a religious belief that homosexuality is a sin and homosexuality – both are capable of protection and this conflict inevitably leads to tough decisions for employers and claims to the Employment Tribunal.