A Clash of Beliefs leading to formal action? Get the disciplinary right – or it won’t stand up to scrutiny article banner image

Important messages for employers on how to conduct a disciplinary have emerged in June from Employment Tribunal decision Miss S Tshikuna Mbuyi v Newpark Childcare (Shepherds Bush) Limited. The case also concerned the sticky issue of where two employees have conflicting and potentially protected views.

In Mbuyi, the Tribunal roundly criticised the employer (a childcare nursery) for having unsatisfactorily managed the disciplinary investigation and hearing of Ms Mbuyi.  The nursery decided Ms Mbuyi had engaged in gross misconduct by discriminating against nursery colleagues, specifically a homosexual co-worker.  Ms Mbuyi, a practising Christian, had told her homosexual colleague when asked for her view on her living arrangements that “God is not ok with what you do”.  The nursery dismissed Ms Mbuyi, however the Tribunal unanimously decided that in so doing her employer had directly discriminated against her on the grounds of her religious belief in breach of the Equality Act 2010.

All viable options considered?

The Tribunal made it very clear in its decision that the employer could have proceeded with tact when dealing with sensitive views and rather than dismiss Ms Mbuyi, it could have arranged a mutually acceptable compromise such as directing that these discussions occur outside working hours. Mrs Mbuyi was passively responding to philosophical enquiry rather than forcing religion on others, and this meant the Tribunal saw scope for tactful solution rather than dismissal.  The employer had not turned its mind to other possible ways to defuse the situation, which is essentially an issue of ‘proportionality.’

The Tribunal made the point that a person of religious conviction is entitled to believe that homosexuality is a sin, and that viewpoint is not necessarily homophobia or bigotry. However, the Tribunal also clearly made the point that inappropriate expression or foisting of religious beliefs upon others is not necessarily acceptable.

Historically Tribunals have decided employers may dismiss persons of religious belief who refuse to carry out certain tasks due to their beliefs (Ladele v London Borough of Islington, McFarlane v Relate Avon Ltd, Chondol v Liverpool City Council).  In Mbuyi there was an occasion when she failed to attend training because her religion conflicted with the topic, however the employer had not investigated this or taken any action at that time, so could not rely on this as a reason to dismiss.

Mbuyi is a good reminder of the importance of acting promptly, dealing sensitively and  ensuring that your Equality and Disciplinary polices are clearly written, setting clear boundaries on acceptable behaviour.

Better Disciplinary procedure

A key message from Mbuyi is the critical importance of getting the Disciplinary process right.

The Tribunal had these criticisms to make of the way the investigation had been handled:

– The nursery had not fully investigated before deciding to dismiss – it simply had not asked Ms Mbuyi about certain conversations and events, therefore failed to adduce evidence;

– The nursery asked questions in the disciplinary hearing that had no legal import therefore contributed nothing by way of evidence (do you think your colleague is “wicked”);

– The employer’s decision was weakened by stereotypical generalisations and assumptions;

– There had been apparent amendments to documents (tampering) which made them unreliable in an evidential sense; and

– The Tribunal agreed with the claimant that her employer’s findings were not based on an accurate account of the circumstances.

The importance of conducting a technically rigorous disciplinary really stands out where there is a risk of any employee claiming discrimination. The burden of proof rests on the employer to show that they did not discriminate rather than on the employee to show that they have.  In this case this meant that the employer had to show there was a genuine and non-discriminatory reason for dismissal.  Hence the need for proper internal investigation by the employer that stands up to scrutiny.

In Summary …

Some see Mbuyi as a landmark decision paving the way for individuals to promote religious conviction in the workforce. That would be taking things too far, because the Tribunal recognises that competing philosophies and life choices need to be balanced and sensitively managed in the workplace, clear boundaries can help, and internal disciplinary investigations need to be done properly, with technical rigour.

The Stephens Scown employment team works in partnership with organisations to improve their HR practices and advise on employment issues. To discuss this or any other HR issue call  01872 265100 or employment@stephens-scown.co.uk