HR and employment law clinic: Ruling on religious discrimination

There has been a flurry of religious discrimination cases making the headlines.

Roger-Spence-of-Harrison-DruryBy Roger Spence, director, Harrison Drury.

Two cases in particular illustrate that employers can face difficult and conflicting considerations when dealing with matters relating to employees’ religious beliefs.

In the first case, Mbuyi v Newpark Childcare, the Employment Tribunal concluded that a Christian nursery assistant who expressed her views on homosexuality to a lesbian colleague, and was later dismissed, was subjected to discrimination on the grounds of her religious beliefs.

The tribunal found that the employer had also been wrong to characterise the exchange as harassment when it had been instigated by the colleague and the claimant was giving an honest answer to a question.

The tribunal concluded that the employer’s decision to dismiss was unlawful as it was based on a stereotypical view of evangelical Christians.

In a different case (Begum v Pedagogy Auras UK Ltd t/a Barley Lane Montessori Day Nursery), the Employment Appeal Tribunal (EAT) had to consider whether the requirement for a Muslim nursery assistant to wear a shorter garment at work, for health and safety reasons, amounted to discrimination.

In this case Ms Begum, who applied for a post as a nursery assistant, expressed the view she was obliged by her religion to wear a jilbab, flowing from neck to ankle. She was asked if she could wear a shorter garment to work as the jilbab she was wearing was seen as a “trip hazard.”

Ms Begum complained of discrimination. The employment tribunal found that the ‘provision, criterion or practice’ (PCP) in relation to dress was not discriminatory because there was no religious requirement for Muslim women to wear a floor-length Jilbab. Alternatively, it was justified on health and safety grounds. The EAT upheld these conclusions. These cases show the potential difficulties for employers when making hiring and firing decisions.