Claimant v DHL Services Limited
Outcome
Individual claims
The tribunal found the dismissal was tainted with discrimination because the appeal decision took into account the claimant's manifestation of his religious belief (saying you cannot be gay and Muslim) which was found to be discriminatory. Although the misconduct complained of by Karen Jones could have warranted dismissal, the substantive reasons for dismissal became tainted by the discriminatory reason relating to the claimant's religion or belief at the appeal stage.
The tribunal found that the appeal decision-maker (Mark Westwood) took into account the claimant's statement that 'you cannot be gay and Muslim' as a significant factor in upholding dismissal. This statement was found to be a manifestation of the claimant's Islamic religious belief. The tribunal concluded that taking this manifestation of belief into account in the dismissal decision was not a proportionate interference with the claimant's Article 9 ECHR rights and amounted to direct discrimination because of religion.
The appeal officer (Mark Westwood) repeatedly asked the claimant (at least 3-4 times) whether he thought saying 'you can't be gay and a Muslim' was homophobic, effectively suggesting the claimant's religious beliefs were homophobic. This line of questioning was found to be unwanted conduct related to the claimant's religion which violated his dignity and created an offensive environment. The questioning was not justified as the comments were not in dispute, not complained of by Karen Jones, and did not form the subject matter of the complaint.
The claimant argued that the Diversity and Respect at Work Policy was a PCP which put Muslims at a particular disadvantage because expressing Islamic beliefs about homosexuality gave rise to disciplinary action. The tribunal rejected this, finding that applied correctly, the Policy did not put Muslims at a specific disadvantage. It was possible to show dignity and respect to gay people and be a Muslim. The Policy targeted improper conduct such as offensive comments or harassment, not the expression of religious beliefs per se.
Facts
The claimant, a Muslim warehouse coordinator with 24 years' service at DHL, was dismissed for gross misconduct after a JLR employee complained he made homophobic comments (pussy licker, rug muncher, dildo up the arse). The claimant denied these words but admitted saying 'you cannot be gay and Muslim' while watching a TikTok video, which he described as his religious belief. The disciplinary hearing focussed on the alleged offensive language. At appeal, the appeal officer repeatedly questioned whether the claimant's admitted religious statement was homophobic, and took this into account in upholding dismissal.
Decision
The tribunal found the claimant's dismissal and rejection of appeal were acts of direct religious discrimination because the appeal officer took into account the claimant's manifestation of religious belief (saying you cannot be gay and Muslim) in a way that was not a proportionate interference with Article 9 rights. The repeated questioning about whether this belief was homophobic amounted to harassment. The dismissal was also unfair because it was tainted by discrimination. However, an 80% contributory fault reduction was applied because the offensive language complained of (which the tribunal found on balance of probabilities was said) was culpable conduct that would likely have resulted in dismissal in any event.
Practical note
Employers must carefully distinguish between genuinely offensive conduct and the manifestation of religious belief when taking disciplinary action, and should not treat the expression of a religious belief (such as 'you cannot be gay and Muslim') as misconduct unless the manner of expression amounts to a proportionate and justified interference with Article 9 rights.
Adjustments
The tribunal identified the relevant conduct as the comments complained of by Karen Jones (pussy licker, rug muncher, dildo up the arse). This conduct was culpable and blameworthy and caused or contributed to dismissal. However, dismissal was not inevitable given the claimant's 24 years' service and the possibility (though not certainty) that the respondent might have imposed a warning with training instead had the decision not been tainted by discrimination. An 80% reduction was considered just and equitable.
Legal authorities cited
Statutes
Case details
- Case number
- 1309371/2022
- Decision date
- 9 August 2024
- Hearing type
- full merits
- Hearing days
- 4
- Classification
- contested
Respondent
- Sector
- logistics
- Represented
- Yes
- Rep type
- barrister
Employment details
- Role
- Warehouse Co-ordinator
- Service
- 24 years
Claimant representation
- Represented
- No