In the roundup for 14 June we mentioned that a London nursery worker, Ms Sarah Mbuyi, had successfully sued Newpark Childcare for unfair dismissal after she had told a lesbian colleague about her beliefs on same-sex relationships and said that we hoped to provide a proper analysis in due course. Here it is.
In Mbuyi v Newpark Childcare (Shepherds Bush) Ltd  ET 3300656/2014 the claimant, Ms Sarah Mbuyi, was a Belgian national and an Evangelical Christian, employed primarily at the respondent’s nursery in Shepherds Bush. Her colleague Laura P was a lesbian in a civil partnership. LP was in hospital after an incident at the nursery and it was common ground that Ms Mbuyi had tried to be kind and supportive of her. On her return to work Ms Mbuyi had given LP a Bible and it was also common ground that LP had thanked her for the gift [10-14]. The problem arose in relation to comments that Ms Mbuyi was alleged to have made to LP about her sexual orientation : LP complained and there was a disciplinary hearing.
At that hearing Ms Mbuyi contended that LP had been the first to raise the issue of Ms Mbuyi’s churchgoing and her own sexuality and lifestyle, had asked if she would be welcomed at Ms Mbuyi’s church and had specifically asked what she believed that God thought about her living arrangements . The discussion at the disciplinary hearing
“then went into the ‘type of sins God does not like’ which, on the face of it, could only have been an enquiry into the claimant’s belief as opposed to what may have been said to LP. The claimant responded, ‘lying, homosexuality, that’s in the Bible! There is no way I would compromise my faith'” [47 & 48].
She appealed in writing but the dismissal was upheld [83-91].
The evidence before the Employment Tribunal suggested (to the satisfaction of the Tribunal, at any rate) that the notes of the disciplinary hearing were unclear. The judgment suggests [73-77] that the Tribunal was not convinced that the conclusion of the disciplinary hearing had taken proper account of the facts. Ms Mbuyi’s alleged comment on 3 or 4 September, “Oh my God, are you a lesbian?”, had not been perceived by LP as harassment at the time, nor had there any investigation as to whether or not it had been said. LP had not said in her witness statement that it had upset her, merely that she had been taken aback that Ms Mbuyi was so openly shocked . Nor had reference been made to the gift of another religious book to another employee, “which would tend to support the proposition that the claimant would take opportunities to share her faith with anyone” .
Ms Mbuyi brought a claim under the Equality Act 2010, alleging that her dismissal was an act of direct or indirect discrimination and/or harassment, relying on the protected characteristic of her religion or belief and, specifically, on her religious belief that homosexuality was a sin [97 & 98]. The Employment Tribunal found in her favour.
The Tribunal’s analysis
The Tribunal summarised the issues as follows:
- Did the respondent engage in unwanted conduct in dismissing the claimant?
- Was the conduct related to the claimant’s protected characteristic?
- Did the conduct have the purpose of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant?
- If not, did the conduct have the effect of violating the claimant’s dignity or creating an intimidating, hostile, degrad ing, humiliating or offensive environment for the claimant?
In considering whether the conduct had that effect, the Tribunal was take into account the claimant’s perception, the other circumstances of the case and whether it was reasonable for the conduct to have that effect 
On direct discrimination:
- Had the respondent subjected the claimant to the following treatment falling within section 39 Equality Act, namely, dismissing her? Dismissal was not disputed.
- Had the respondent treated the claimant, as alleged, less favourably than it had treated or would have treated the comparators? The claimant relied on a hypothetical comparator.
- If so, had the claimant proved primary facts from which the Tribunal could properly and fairly conclude that the difference in treatment was because of the protected characteristic?
- If so, what was the respondent’s explanation? Could it prove a non-discriminatory reason for any proven treatment? 
On indirect discrimination:
- Did the respondent apply the following provision, criteria and/or practice (‘the provision’) generally, namely a prohibition on employees expressing any adverse views on homosexuality and/or on describing homosexuality as a “sin”? The respondent acknowledged that such a provision was applied.
- Did the application of the provision put others who shared the religious view that homosexuality is a sin at a particular disadvantage when compared with persons who did not have that protected characteristic? The respondent took no issue on that point: it appeared common ground that a significantly higher proportion of evangelical Christians would hold such a view, as opposed to the population or, indeed, the respondent’s workforce, generally.
- Did the application of the provision put the claimant at that disadvantage, in that she was dismissed?
- If so, had the respondent shown that the treatment was a proportionate means of achieving a legitimate aim?
The respondent relied on justification as its defence to the indirect discrimination allegations. The legitimate aim contended for was providing its services in a non-discriminatory way for the benefit of clients and staff and in accordance with the Early Years framework .
The Tribunal also noted that “The UK legislation has, where possible, to be read in conformity with Article 9 by virtue of section 3 of the Human Rights Act 1998” . It further noted that, since the manifestation of belief by one person might impact on others, it was qualified by Article 9(2): that any limitation placed on a person’s freedom to manifest had to be prescribed by law and necessary in a democratic society in pursuit of one or more of the legitimate aims set out in the Article . The Tribunal also noted the statement in Eweida and Ors v United Kingdom  ECHR 37 that
“Given the importance in a democratic society of freedom of religion, where an individual complains of a restriction on freedom of religion in the workplace, rather than holding that the possibility of changing job would negate any interference with the right, the better approach would be to weigh that possibility in the overall balance when considering whether or not the restriction was proportionate” 
The Tribunal noted that there was substantial common ground between the parties as to the approach to be adopted in claims of unlawful discrimination, which it set out at  as follows:
- The critical question in a discrimination case was why the claimant was treated as she was: the ‘reason why’ question. In most cases that would call for some consideration of the mental processes (conscious or not) of the alleged discriminator.
- Because direct evidence of discrimination was rare, it was often necessary to infer discrimination from all the material facts. A two-stage test had been adopted for the burden of proof (reflecting the requirements of the Burden of Proof Directive 97/80/EEC).
- The burden was on the claimant at the first stage to establish a prima facie case of unlawful discrimination: to prove facts from which inferences could be drawn that the employer had treated the claimant both less favourably and on the prohibited ground.
- If the claimant proved the facts, then at the second stage the burden shifted to the employer, who could only discharge it by proving on the balance of probabilities that the adverse treatment was not in any way on the prohibited ground. Failure to do so would lead to a finding of unlawful discrimination, save where justification is available.
- If one of the reasons for the treatment was a claimant’s protected characteristic, it was sufficient to establish discrimination, even if it was not the only or even the main reason, provided it was more than a trivial reason for the impugned treatment: IGEN Ltd & Ors v Wong  EWCA Civ 14.
- The two-stage approach was not obligatory: Madarassy v Nomura International Plc  EWCA Civ 33. In some cases it might be more appropriate to focus on the reason given by the employer for the impugned treatment. If the reason or reasons given by the employer demonstrated that the prohibited ground played no part whatever in the adverse treatment, the case fell.
- Where the complaint was not that the claimant was treated differently from others but that she was not treated differently when she ought to have been and where the complaint was about a failure to accommodate her difference, not that she was being discriminated against because of that difference, it could not (as Elias J had said in Islington v Ladele  UKEAT 0453 08 1912 at ) “constitute direct discrimination to treat all employees in precisely the same way”.
- Even if there were sufficient evidence from which to infer discrimination, any allegation required consideration of the explanation given by the employer for the less favourable treatment because, if the Tribunal was satisfied that the reason was non-discriminatory even if in other respects the conduct had been unreasonable, then no discrimination had occurred.
As to religion, the claimant’s treatment had not been because she was a Christian. She had been open about her faith and colleagues and the respondent had been aware of it at all material times. “The respondent was not anti-Christian.”  The issues arose out of her belief that homosexuality was a sin:
“Such a belief has effectively already been accepted by the higher courts, in cases such as Macfarlane and Ladele, as capable of amounting to one that attracts the protection of the Equality Act 2010 and its antecedents” .
It was a genuinely-held belief that was more than an opinion or viewpoint  and a belief that was worthy of respect in a democratic society, was not incompatible with human dignity and was not in conflict with the fundamental rights of others:
“Whilst some may dispute those propositions, we are considering here the belief itself. When, whether and how such a belief may be manifested, however, is one of the issues in this case, given the inherent interplay with the right not to be discriminated against because of sexual orientation” .
The Tribunal rejected the charge that Ms Mbuyi’s belief was “discriminatory, homophobic and akin to racism” . There was a difference between, say, a racist expressing hateful views and a person of religious conviction expressing her beliefs, “however unwelcome” , though that was not to suggest that “the inappropriate expression of religious beliefs that may appear discriminatory would receive special protection under the law” .
The Tribunal was not persuaded by the novel ground advanced by counsel for Ms Mbuyi that the UK legal system prioritised rights relating to sexual orientation over those of religious conviction and therefore hindered the freedom of movement of EU workers [127-131]. The Tribunal also rejected the claim of harassment [132-137]. The Tribunal accepted that, though Ms Mbuyi did not have sufficient qualifying service to claim unfair dismissal , she had been treated unfairly ; but it also pointed out that unfairness did not, of itself, make out a claim for discrimination .
The Tribunal concluded, on the facts, that Ms Mbuyi had been discriminated against directly. The respondent had sought to suggest that the appropriate comparator was a non-Christian who had expressed negative, homophobic or discriminatory views about practising homosexuals and that such person would have been dismissed – but such a person would not “have been asked questions about the word ‘wicked’, nor would they use the word ‘sin'”:
“It seems unlikely that all of the evidential and logical leaps taken by the respondent in construing the claimant’s motive as targeting LP because of her sexuality can be explained, other than as arising from a stereotypical assumption about evangelical Christians. In the absence of such a stereotype for a secular comparator they would surely have had to investigate and make findings about the earlier allegations. The reality, as indicated by the claimant throughout, was that she would seek opportunities [to express her views as a Christian] wherever they arose but not if somebody did not want her to” .
The reason for the Tribunal finding as it did seems to have been that it interpreted the evidence as
“an individual asking a colleague a question about their otherwise protected private life, half expecting that they will not like the answer, particularly when one or more protected characteristics are engaged” .
– in short, if you don’t like the answer, you shouldn’t have asked the question in the first place.
But is that good enough? In another recent case, Wasteney v East London NHS Foundation Trust  ET 3200658/2014, which we noted in April, an Employment Tribunal came to the opposite conclusion on rather similar facts. The case involved three charges of misconduct: praying with EN, a Muslim colleague of Pakistani heritage, giving her a book about a Muslim woman who converts to Christianity, and inviting her to church events. The Tribunal concluded on that occasion that
“The context of the disciplinary process … was religious acts but the reason for her treatment was because these acts blurred professional boundaries and placed improper pressure on a junior employee rather than that they were religious acts. We have no doubt that the employer would have taken a similar approach had, for example, the Claimant being pressing a particular political point of view of a view”.
So what might account for the difference in outcomes between the two cases? Possibly:
- such cases are so highly fact-sensitive that Mbuyi and Wasteney can simply be distinguished on the facts; or
- the Tribunal in Mbuyi was prepared to give more weight to Article 9 rights than the Tribunal in Wasteney was; or
- the injured feelings of a devout Muslim woman were given more weight than the injured feelings of a woman in a civil partnership; or
- the law is still very unclear; or
- one or other Tribunal just got it wrong.
I confess that I do not know the answer. But I should have thought that remarks like “Oh my God, are you a lesbian?” were simply not to be tolerated in the workplace or, indeed, in civilised society in 2015; and just because it was said (if, indeed, it was said) by an avowedly-Evangelical Christian is no excuse whatsoever. It is to be hoped that in due course an Employment Appeal Tribunal will sort it all out – but I’m not holding my breath.
With thanks to the National Secular Society for posting the transcript.
I note the comment that words “Oh my God, are you a lesbian?” should not be tolerated in the workplace. Would you say the same of a shocked exclamation “Oh my God are you a Christian/Muslim/Jehovah’s Witness/Scientologist?”? And what of a person who meets a fellow employee they have previously only spoken to on the ‘phone and greets them with the words “Oh my God, are you Chinese/African?”?
The comparisons would doubtless need expansion, e.g. The comment on the lesbian could refer to orientation or life style, whereas the comment on race can only refer to an inherent characteristic (unless one rejects the whole concept of race and does not even see it as a social construct). On the other hand, in any of these examples the words themselves do not necessarily express disapproval but could simply be surprise.
I should add that one does need to take account of the judicial view that same sex orientation entails a particular form of life style and therefor condemning that life style is discriminatory against those with that orientation. That seems to me a dangerous example of stereotyping. It may pass unnoticed because the modern social mores sees nothing questionable about the life style but it is interesting to compare it with the association between being a Muslim and supporting Daish. There, the disjunction that one does not necessarily follow from the other is important if Muslims generally are not to be discriminated against. Even so there it seems difficult to deny the existence of greater toleration of Daish amongst Moslems than in the community at large.
I think that’s fair comment. I was guilty of “Oh, I didn’t realise you were Chinese!” myself once, on first meeting face-to-face a colleague with whom I’d only previously had contact by telephone and e-mail: she happened to be married to a Brit so she had an English surname. Fortunately for me, she just giggled – but she might have got really ratty with me.
I think my particular problem with “Oh my God, are you a lesbian?” is that it’s almost certain to be taken as disapproving. And even if it’s only taken as disapproving on one occasion in ten, since you never know when you say it whether or not it’s going to be the tenth occasion you’d better not say it at all. But I stand by what I wrote: people can hold whatever opinions they like – however batty, repulsive or just plain daft – but in a professional situation they should keep their views on the morality of colleagues’ private lives strictly to themselves. If I thought a colleague was doing something criminal I’d probably go to the police: but what people do in their private lives – so long as it’s legal – is simply none of my business.
And yes, I think I probably would take the same view of “Oh my God are you a Christian/Muslim/Jehovah’s Witness/Scientologist?” Some people in those categories wouldn’t be remotely fussed: others might be quite offended. And one doesn’t go to work gratuitously to offend one’s colleagues.
This certainly seems consistent – and obviously a higher standard of behaviour may, properly, be required in a professional or employment context. But what treatment is proportionate? Free speech seems to be very highly rated in our society but sometimes a stupid or rude outburst is treated in a quite draconian manner. The recent furore over the forced resignation of the Nobel prize winning scientist at UCL has been seen by many to reflect an intolerance which is disproportionate to the offence. Mbuy’s employers could be said to exhibit a similar intolerance.
If consistency is a priority I would be more unhappy with Wasteney than Mbuyi, although I think Wasteney may be distinguishable because of the relative positions of the two people concerned.
I wonder whether Ms Mbuyi’s nationality is significant? Is her grasp of the nuances of English so perfect that she is aware of the potential negative tone of ‘O my God’?
The main point about her nationality was the very minor issue as to whether or not the UK legal system prioritised rights relating to sexual orientation over those of religious conviction and therefore hindered the free movement of EU workers [127-131]. If she’d been a UK national presumably that argument wouldn’t have been run. Apologies for not making the link between the two more obvious.
But on further reflection what you suggest may be right: that as (presumably) a first-language Francophone she was unaware of the more subtle nuances of the way she expressed herself.
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Qu’est devenue Sarah Mbuyi ?
Malheureusement, nous ne savons pas.