In 1975, in the case of Treganowan v Robert Knee Ltd, an Industrial Tribunal refused to make a finding of unfair dismissal arising out of a clash of personalities between the dismissed Claimant and ‘other young girls in the office’. The conflict had arisen from a difference in view about ‘the merits of a permissive society’ and the Claimant’s persistence in introducing her ‘illegitimate child’ and ‘younger boyfriend’ into office conversation. One can only imagine the manic stomping of platforms and bitching in the toilets as they waited for mirror space to slap on the blue Rimmel.
I was reminded of Treganowan when I read about the recent ET decision in Mbuyi v Newpark Childcare Ltd. This was the case of a Christian nursery worker dismissed following a discussion with a lesbian colleague over church attendance, whether homosexuality is a sin, and whether the colleague should be able to marry her partner in church. The tribunal found that Ms Mbuyi had been discriminated against, possibly as a result of stereotypical views held by her employer about evangelical Christians, and that she had not sought to force her beliefs on the colleague or denigrate her. The case was widely reported in the mainstream media, as well as in LGBT and Christian publications, with reports offering predictably differing takes on the outcome.
The case is a good reminder that the belief that homosexuality is sinful is, for now at least, a belief which is afforded legal protection. That part of the decision was nothing new – higher courts have come to the same conclusion on several occasions. Most employers want to take a hard line on potential discrimination and harassment, but it must be remembered that this isn’t a one way street. That being the case, an employer can be left in the position of having to make very fine judgments between someone who merely admits that belief freely and openly and someone who crosses the line by flaunting or foisting it on colleagues. These lines are fine and shifting – hence the Treganowan case having an air of quaintness about it today.
In offering training and advice on harassment on protected grounds we often focus on the ‘banter’ question – and it is an important one. But it’s important not to overlook that harassment – and certainly the perception of harassment – can also arise in the form of serious disagreement about subjects which are very important to us. Many people can take a joke, perhaps fewer will react well to being told they are sinners by well-meaning workplace preachers.
For a generation or so, talking publically about one’s convictions has seemed to be a little passé, and all the more so if those views were traditional or reactionary. But are things changing? The general election, arguably won by ‘shy Conservatives’, saw plenty of voters prepared to stick a UKIP banner in their little piece of England. Whilst religious practice continues to decline, those that are of faith (Muslim and other faiths as well as Christians) are perhaps more ready to vocalise their convictions, including the moral aspects. I think the ETs will be dealing with plenty more Mbuyi v Newparks in the coming years.
Barrister, Menzies Law