Dismissal of Christian employee for expressing negative views about homosexuality was discriminatory

Religion, belief and sexual orientation are all protected characteristics under the Equality Act.  In Mbuyi v Newpark (Shepherds Bush) Childcare Ltd an Employment Tribunal considered whether the dismissal of a Christian employee for expressing anti-gay views amounted to religious discrimination.

Miss Mbuyi is an evangelical Christian.  She was employed by Newpark Childcare Ltd as a nursery assistant between April 2013 and 9 January 2014.  Miss Mbuyi’s colleague (referred to in the judgment as “LP”) also worked at the nursery.  LP lives in a civil partnership with her female partner.

A number of incidents occurred during the course of Miss Mbuyi’s employment:

  • Miss Mbuyi told LP her hair was “too short for a woman”;
  • Miss Mbuyi said to LP, “Oh my god, are you a lesbian?”;
  • Miss Mbuyi gave LP a bible as a gift. Miss Mbuyi had written a note in the bible which referred to LP’s “struggle” or “difficulties”. Miss Mbuyi also gave another colleague a bible as a secret Santa gift; and
  • Finally, in January 2014, a conversation took place between Miss Mbuyi and LP, during which Miss Mbuyi advised LP that her understanding of biblical teaching was that homosexuality was a sin. LP, who was upset by Miss Mbuyi’s comments, complained to her line manager.

Miss Mbuyi was invited to a disciplinary hearing, at which she stated that it was LP who had raised the subjects of Miss Mbuyi’s faith, LP’s sexuality, whether LP would be welcomed at church and what God would think about LP’s living arrangements.  Miss Mbuyi said that she had told LP that “God was not OK” with LP living with a woman.  She told the disciplinary panel, “I am not a homophobic person, but I believe homosexuality is a sin and God doesn’t like that.” When the panel asked Miss Mbuyi if she thought LP was wicked she replied, “Yes, we are all wicked”.  Newpark never investigated Miss Mbuyi’s version of events.  Miss Mbuyi was dismissed for gross misconduct for harassing LP by making “inappropriate comments” regarding her sexuality.  Miss Mbuyi claimed that she had been discriminated against on the grounds of her religion or belief.  She had not been employed by Newpark for long enough to claim unfair dismissal.  Her discrimination claim was upheld.

Details of the allegations had not been given to Miss Mbuyi before the hearing, her version of events had not been investigated and the disciplinary panel had asked Miss Mbuyi questions about her religious beliefs which were not relevant to the allegations.  Whilst the unfair process did not, of itself, make out a claim for discrimination, the fact that Newpark appeared to have jumped to conclusions about what had happened suggested that it had been influenced by stereotypical assumptions about evangelical Christians.  As there were sufficient facts from which the Tribunal could conclude that discrimination had occurred, the burden of proof shifted to Newpark to provide a reasonable explanation for its actions. As Newpark could offer no explanation for the belief-based questions it had put to Miss Mbuyi, its failure to put the allegations to her, or its reasons for concluding that she had harassed LP without investigating the matter further, the Tribunal concluded that Miss Mbuyi had been discriminated against.

Employers should be proceed cautiously when investigating allegations involving employees’ religious or philosophical beliefs and ensure that investigations are fair and even-handed. In this case, if Newpark had investigated the matter and concluded that Miss Mbuyi’s version of events was true, the most appropriate course of action, at least in the first instance, may simply have been to meet with both employees and explain that discussing matters relating to religion, sex and sexuality at work was inappropriate.

TUPE – Assignment of employees

In Jakowlew v Saga Care, the Employment Appeal Tribunal considered whether a client in a TUPE scenario can dictate who is assigned to the organised grouping of employees for the purposes of the transfer.

Ms Jakowlew was employed by Saga Care as a care manager.  She worked principally on a contract for the London Borough of Enfield (LBE). The contract between Saga and LBE expired, following which the services were provided by Westminster Homecare Ltd.  Shortly before the contract came to an end, Ms Jakowlew fell out with her line manager and was suspended.  LBE instructed Saga to remove Ms Jakowlew from the group of employees providing the service, which LBE was entitled to do under the terms of the contract, however Saga did not carry out LBE’s instructions.  Instead, Ms Jakowlew was disciplined by Saga and issued with a final written warning.  She was informed by Saga that her employment would transfer to Westminster under TUPE.

There was confusion after the transfer as to whether or not Ms Jakowlew’s employment had transferred and she was eventually dismissed by Saga on the grounds of redundancy. Ms Jakowlew claimed that her employment had transferred to Westminster under TUPE and brought unfair dismissal claims against both Saga and Westminster.  The EAT held that her employment had transferred to Westminster.  Although LBE had the right under the contract to instruct Saga to remove Ms Jakowlew, it did not have the power to enforce her re-assignment.  Only Saga, as her employer, had such authority.

The effect of Saga’s refusal to carry out LBE’s instructions was to transfer a problem employee to Westminster.  Saga’s failure to comply with the terms of the contract would give rise to a breach of contract claim by LBE against Saga. However, the value of such a claim would depend on the loss (if any) sustained by LBE and whether LBE was liable to indemnify Westminster for the costs associated with Ms Jakowlew’s employment and its termination.  This is a tricky issue and clients who outsource services should consider including an indemnity in outsourcing agreements in respect of any employees who they have specified should be removed.

Carrying over holiday pay during sick leave

In Plumb v Duncan Print Group Limited the EAT considered whether an employee who is on sick leave has to show that he was unable because of illness to take the basic statutory holiday provided for under Regulation 13 of the Working Time Regulations 1998 (WTR) in order for it to be carried over and whether the right to carry over holiday is unlimited for sick employees.

Mr Plumb, who was a printer, took four years’ sick leave following an accident. When he was dismissed in 2014, he claimed a payment in lieu of 60 days’ holiday he had accrued in 2010, 2011 and 2012.

The EAT held that an employee who is off sick does not have to show that he was unable by reason of sickness to take annual leave in order to carry forward his holiday entitlement.  Although an employee who is off sick may choose to take annual leave while he is off sick, he is not required to do so.  If such an employee does not wish to take holiday while he is off sick, he is entitled to take it at a later date.

However, the EAT also held that the WTR do not confer an unlimited right to carry over holiday.  The EAT concluded that the WTR should be read as permitting an employee to take annual leave within 18 months of the end of the leave year in which the leave accrued, if the employee was unable or unwilling to take it because he was off sick.  Mr Plumb was therefore entitled to a payment in lieu of accrued holiday for the holiday year which ran between 1 February 2012 to 31 January 2013, however he was not entitled to any compensation for holiday he had accrued in earlier years.

This means that employees on sick leave can choose to carry forward their (basic four week) statutory holiday entitlement.  Such employees may choose to take a long holiday when they return to work and if their employment is terminated, they will be entitled to a substantial payment in lieu of accrued but untaken holiday.  However, this case confirms that right to carry over holiday will be lost if the holiday is not taken within 18 months of the end of the relevant holiday year.

For more information contact Jayne Harrison or Emma Tegerdine