Religious belief v sexual orientation in the case of Mbuyi v Newpark Childcare

Religious belief v sexual orientation in the case of Mbuyi v Newpark Childcare

In June 2015, a Christian nursery worker who was sacked for anti-gay views won her discrimination case. Employment Law solicitor, Nathalie Stewart, takes a look back at the decision and what it means for employers.

The background

Ms Mbuyi was a practicing Christian who started working at Newpark Childcare in September 2013. One of her colleagues (‘LP’) was a lesbian in a civil partnership.

After LP returned to work from a period of sickness absence for which she was hospitalised, Ms Mbuyi gave LP a bible as a gift.

A short time later after the Christmas break, both Ms Mbuyi and LP had a discussion about what they had been doing during the holidays as colleagues do.

Ms Mbuyi discussed various activities she had taken part in at her church, and LP responded by saying that she would not be interested in attending church until it would recognise her relationship and she could get married there.

Ms Mbuyi responded by saying that “God is not okay with what you do,” but also said that “we are all sinners.”

LP was upset at the remarks, left the room and reported the incident.

Ms Mbuyi was invited to a disciplinary meeting in which she sought to explain the comments she made. She stated:

“I can only tell the biblical truth. I am not a homophobic person, but I believe homosexuality is a sin and God does not like that.”

She also explained that it was LP that had first raised Ms Mbuyi’s church, first raised her own sexuality, asked if she would be welcome at her church and asked what Ms Mbuyi believed that God thought about her.

Despite her explanation she was later dismissed for gross misconduct being the harassment of her colleague.

She brought a claim alleging discrimination on the grounds of religion and belief. (She had under two years’ continuous employment service, so didn’t qualify to issue a claim of unfair dismissal as well and/or in the alternative).

The decision

The Employment Tribunal upheld her claim that she had been discriminated against.

Concluding that a prima facie case of discrimination had been shown, the burden of proof then moved to the employer to show that their action, in dismissing Ms Mbuyi, was not discriminatory.

However, the Tribunal rejected the attempts by the nursery to characterise Ms Mbuyi’s behaviour as homophobic and akin to racism (i.e. trying to suggest that it was actually Ms Mbuyi who committed the discriminatory act).

It found that her views were a genuinely held belief, which were worthy of respect in a democratic society – not incompatible with human dignity and not in conflict with the fundamental rights of others.

The Tribunal found that the employer's actions were potentially based on stereotypical views of Christians and their beliefs, and that a secular employee would not have been treated in the same way.

Also, there were procedural issues with the disciplinary. Ms Mbuyi’s dismissal letter referred to allegations that were not even put to her during the disciplinary meeting, and there was a lack of evidence to support the allegations.

What this means for you

The key point to take away from this case is that it will very much depend on the particular facts as to whether or not an employee's manifestation of their religion or a belief can justify disciplinary action. So knee jerk reactions must be avoided.

It’s clear from this case, given the speed at which Ms Mbuyi was dismissed, that had a thorough investigation taken place and sufficient consideration given to the situation a different conclusion may have been arrived at.

Also, while Ms Mbyui was successful in her discrimination claim, had the disciplinary proceedings been dealt with properly the nursery would have been better placed to defend the claim.

This case also serves as reminder to always follow a fair procedure when dismissing an employee. Even if they have less than two years' service.

Need advice? Get in touch today

Please call Nathalie Stewart on 01482 324252.

Or email

You can find out more about our Employment Law services here.

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