Recent discrimination judgments: the lessons for employers

A number of discrimination cases have featured in the press recently highlighting the difficulties faced by employers trying to balance the interests of individuals with conflicting protected characteristics, or against an employer’s own health and safety obligations.

Nicola Green and Victoria Watson from Capsticks look below at the judgments handed down in two cases where there was a conflict between the religious views of one party and the sexual orientation of another and a third case where a claim was brought due to the offence caused by a prospective employer’s uniform requirements on the basis of the individual’s religion.

Bakery refuses to fulfil an order for a cake in support of gay marriage.

In Lee v Ashers Baking Company, Mr Lee, a volunteer with a gay rights campaign group had ordered a cake to mark the election of the first openly gay mayor in Northern Ireland. When the bakery refused the order, Mr Lee contended that it was discriminating against him because of his sexuality. The bakery argued that it was not aware of Mr Lee’s sexuality and that it was refusing him access to its goods and services because of the message he wanted on the cake, which was inconsistent with the religious beliefs of the family which owns the bakery.

The Northern Ireland County Court held that Ashers’ directors were guilty of direct discrimination against Mr Lee, which could not be justified. The family run bakery was unable to rely on their “genuine deeply-held religious beliefs” and in this respect it was key that the bakery is a commercial venture with no mention of furthering religious values in its Memorandum and Articles of Association.

This case demonstrates that where an organisation is run for the purpose of providing a service to the public, the law requires that it should provide that service equally to everyone. Whilst the particular beliefs of the individuals working within the organisation must be acknowledged, respected and protected as far as possible, those beliefs will not entitle the organisation to discriminate against members of the public in the services that they provide. Employees in healthcare services must, of course, be made aware of this and measures should be taken to ensure that the organisation does not discriminate in the service it provides, despite the personal beliefs of staff members.

Christian worker discriminated against after she was dismissed for telling a lesbian co-worker she was living in sin

A second case which involved a conflict between an individual’s religious beliefs and the sexual orientation of another is Mbuyi v Newpark Childcare (Shepherds Bush) Ltd. Miss Mbuyi is a Christian and worked and as a nursery worker with a colleague who was a lesbian.

During a conversation between Miss Mbuyi and her co-worker, Miss Mbuyi advised her co-worker that her understanding of biblical teaching was that homosexuality was a sin. Her co-worker was upset by this and spoke to her manager about the issue which resulted in the summary dismissal of Miss Mbuyi.

Miss Mbuyi brought a claim for discrimination because of her religion and belief and the Employment Tribunal found that she had been discriminated against. Miss Mbuyi had not been treated fairly before dismissal, and the dismissal itself was not a proportionate response to the comments she had made.

Although this case is very fact specific, some of the comments in the judgment are useful to employers. The Tribunal found that on this occasion, all Miss Mbuyi had done was to give an honest response to her co-worker’s questions. In the Tribunal’s view, rather than moving to dismiss Miss Mbuyi as a first response to the event, during the disciplinary process both Miss Mbuyi and her co-worker should have been advised that discussing matters of religion, sex and sexuality at work is inappropriate and should not be repeated. The Tribunal expressed the view that had Miss Mbuyi refused to accept this and repeated the act, her dismissal could then have been justified.

There was also discussion in the judgment of the fact that the dismissing officer may have taken the decision to dismiss based on unchallenged evidence that supported the stereotypical assumption of Evangelical Christians, which was clearly wrong. This case serves as a reminder that those involved in disciplinary processes should understand how important it is that they remain open minded going into the disciplinary process, and that they must ensure that they do not allow prejudicial stereotypes to cloud their judgement.

Uniform requirements and religious discrimination

In the final case, Begum v Pedagogy Auras UK Ltd, the EAT upheld a Tribunal decision that a nursery did not discriminate against a job applicant when it asked whether she could wear a shorter jilbab (a full length garment worn by some Muslim women).

After an interview Miss Begum was offered an apprenticeship as a nursery assistant. She was then asked whether she could wear a shorter jilbab to work. She was advised that it was important that whatever she chose to wear did not present a trip hazard to staff or children. Ms Begum said she would discuss this matter with her family. She left the interview and then refused the job offer and complained to the recruitment agency that she was insulted by these comments.

Ms Begum brought a claim against the nursery arguing that the uniform policy discriminated against her. The Tribunal and the EAT found in favour of the nursery and commented that merely raising the question as to whether Ms Begum could wear a shorter jilbab was not detrimental to her. It found that the uniform policy did not indirectly discriminate against Muslim women and confirmed that even if it had been indirectly discriminatory, it was justified on the grounds of health and safety. In reaching its decision, the Tribunal took into account the fact that other members of staff were muslim women who wore ankle length jilbabs, and concluded that the uniform discussion had simply focussed on the length of the jilbab and its potential to amount to a tripping hazard.

This decision will be of particular interest to employers in the healthcare sector, where it is common to have uniform policies based on health and safety requirements. If employers have uniform policies which are potentially discriminatory, such as the bare below the elbow policy, they should ensure that they are able to point to documentary evidence, such as a risk assessment, demonstrating the health and safety requirements on which they are based, and that they are proportionate in meeting those requirements. However, it is important to be aware that a blanket policy across an organisation is unlikely to be justifiable. Instead, employers should take a view on uniform requirements based on the particular environment within which different groups of employees work.

Summary

There are individual learning points to be taken from all three judgments. However, the important message for employers that arises out of all of these cases is that the rights of one individual or group with a protected characteristic will not outweigh all other considerations. In every case a careful balance must be struck which ensures that the beliefs, practices and cultures of employees are respected, whilst the needs of the organisation, and the community that it serves, can still be met.

Nicola Green and Victoria Watson, Capsticks