Mbuyi v. Newpark Childcare is an everyday tale of Christianity meeting homosexuality and sparks ensuing, not in a good way.  Put very simply (there was a little more to it, including the glorious non-sequitur “X had replied with a positive comment, given that the Claimant is from Belgium”), a lesbian employee asked an Evangelical Christian colleague whether God would be “OK” with her lesbian lifestyle.  On receipt of the answer that the Bible made that lifestyle a sin, so God would not be OK with it, the unnamed lesbian employee complained and the Christian was dismissed.

Ms Mbuyi, the Christian, lacked the service to claim unfair dismissal but in a singular failure to turn the other cheek, brought proceedings for discrimination and harassment on the grounds of her belief.  She lost the harassment claim, not least because when questioned on the impact of the other employee’s complaints on her, she had said “It was great. I could tell [her] the Gospel”.

The discrimination claim succeeded, but largely on the basis of inferences drawn by the Watford Employment Tribunal from a series of failures in Newpark’s conduct of the disciplinary proceedings. In particular, it had (i) taken into account matters not referred to in the disciplinary proceedings; (ii) excluded matters tending to undermine its own position; (iii) made findings not supported by the evidence; (iv) not sought to determine if an apology and/or revised working practices could have resolved the matter; and (iv) leant on Ms Mbuyi for raising religion in the workplace but not the lesbian employee for raising her orientation.

All fairly obvious stuff, but the bigger question for employers arising from this case is what the Tribunal said about a claim which it was not hearing and which had not been brought, i.e. a hypothetical claim for harassment on grounds of sexual orientation brought by the lesbian employee.  The Tribunal said that: “The law would fall into disrepute if an individual could ask a question, knowing the likely response and on receiving it, however genuinely upset, claim that it was unwanted contact and hence harassment ….it may have been unwelcome, but on the facts of this case it could not be said to have been uninvited”.

Put in those terms, that principle must be correct, whether you are a homosexual seeking God’s view from an Evangelical Christian, an Arab discussing Gaza with a Jew or a recent immigrant looking for guidance from a colleague you know voted UKIP.  To some extent you must be expecting a certain sort of answer, and to the extent that you get it, it is not uninvited even if badly received, and so cannot be unlawful harassment.  As an alternative, though it was not run in Mbuyi, you might argue that in the circumstances it would be unreasonable under Section 26(4) Equality Act 2010 to take offence from the exchange, given the complainant’s part in it.

But then you have to apply the facts of each case.  There was little ultimate dispute in Mbuyi  about who had said what and in what order (lesbian employee raises question, Christian employee answers it).  However, if the facts had been less clear or had differed only in very minor respects, the outcome could have been very different.  What if Ms Mbuyi had volunteered her views on same sex partners unprompted, for example, or if her response had been even more Old Testament and included reference not just to sin but the consequent eternal damnation, etc.?  What if the lesbian employee had not known Ms Mbuyi to be so fervently religious and so was not aware of the likely response?  Under those circumstances, being branded a sinner by reason of your orientation (or at least the added degree of emphasis and gratuitous detail of the likely result) could not be said to be invited or wanted.  As an employee you could then more easily get a harassment claim off the ground, and as employer you would have much stronger grounds for taking action.

These are very fine but important lines for employers to tread.  If you over-react to the making of a remark which affects or arises from someone’s protected characteristic, then you may discriminate against the maker.  On the other hand, if you under-react, you may discriminate against the recipient.  Therefore:-

(i)         because of the scope for adverse inference, try to avoid the same procedural mistakes as Newpark in this case;

(ii)        investigate the remark as thoroughly as you can – what was the context, how did the rest of the conversation go, what did anyone else hear?

(iii)       consider any evidence of past over-sensitivity on the complainant’s part or under-sensitivity on the other’s;

(iv)       if you consider the offence taken to be real but unintentional, quickly propose some form of clear-the-air meeting.  Once someone is made aware of having caused offence and yet still declines to do the necessary to resolve matters, both moral and legal culpability shift very quickly, and then you are onto a different set of rules altogether;

(v)        in formulating your factual conclusions about who said what, set out your thinking in as much detail as possible.  That will reinforce the reasonableness of your belief and minimise the scope for adverse inferences.