Christian Nursery Worker Wins Tribunal Case Against Claims of Homophobia

A Christian nursery worker sacked by her employer for making negative comments about homosexuality and gay marriage has won an employment tribunal against her former employers for unfair dismissal.

In January 2014, Sarah Mbuyi, 31, was removed from her position at Newpark Childcare in Shepherd’s Bush, London on the grounds of gross misconduct. In this instance This followed Ms Mbuyi’s telling an openly gay colleague that her homosexual lifestyle and gay marriage act in contrast to the wishes of God.

The conversation begun after the colleague disputed the fact that she was refused the chance to marry her partner in a church ceremony due to Christian belief. Evoking EU laws on religious freedom, Ms Mbuyi’s employers made the decision dismiss her from her nursery position after receiving a complaint from the colleague

Ms Mbuyi, a Belgian citizen living in Tottenham, claims she was only responding to questions relating to the Christian stance on gay marriage and that she meant to no personal offence to the colleague who proposed these questions despite being aware of Ms Mbuyi’s beliefs and the related teachings of the bible.

The Christian Legal Centre (CLC) supported Ms Mbuyi throughout the tribunal, making claims that she was unfairly classed as having behaved in a discriminatory way due to her religious beliefs.

The tribunal verdict

The Watford tribunal ruled against the possibility that the managers at Newpark Childcare acted in a manner that discriminated against Christian views, but did consider that Ms Mbuyi was most likely dismissed from her job due to Newpark Childcare making “stereotypical assumptions about her beliefs”.

This was a sentiment supported by Ms Mbuyi, who agreed that it wasn’t a case of religious discrimination from her employer: She remarked “there were other Christians employed there, and there was never any campaign against them.”

The controversial ruling was justified by the tribunal on the grounds that censorship of Christian belief would cause a major impact on UK religious freedom, as a large amount of Christians hold the same views on homosexuality, and that many evangelical Christians actually believe their faith demands that they share such viewpoints.

Since the ruling a delighted Ms Mbuyi has spoken openly about the tribunal ruling and the support she has received in the process: “I only ever responded to questions that my colleague asked me […] I give glory to God for the decision and say ‘well done’ to the Christian Legal Centre. I hope that my previous employer and colleagues are well and will understand from this that my intention was for their best.”

Newpark Childcare have now defended their decision to dismiss Ms Mbuyi. Speaking to the Sunday Times,Tiffany Clutterbuck, a director of Newpark Childcare, asserts that the company was merely reacting in a way they deemed to be the most appropriate response to to the situation, claiming “We have robust policies and rules to ensure our nursery is inclusive and supportive for our children and staff, and we took the decision to dismiss Miss Mbuyi with a view to protecting that culture”.

What the Parliamentary Speech Means For Employment Law

The Queen’s parliamentary speech of May 2015 revealed a host of changes that the new Conservative government plan to put into action later this year under the guidance of Sajid Javid, the new Secretary of State for Business.

Here is a low-down of the most significant proposed changes to be made to employment law.

Strike action laws

Striking actions are expected to soon require the approval of at least 50% of staff members who are eligible to protest over the issue being opposed.

Where a strike will affect the running of a public service, a number of additional challenges may also be implemented to prevent major disruption to both citizens’ lives and the country’s economy.

This will include public services like the health, transport, education and emergency service industries. Each of these industries will also require striking approval from at least 40% of its eligible union members.

A ban on agency workers?

Plans are also underway to put an end to the ban on employers hiring agency workers to fill the void in the workplace left when employees go on strike. This controversial decision has been defended by the new government with claims that it will supposedly “tackle the intimidation” felt by many workers who either choose not to strike or get cajoled into doing so by their peers.

There are also plans from the new government to reduce the amount of paid leave given to union representatives when undertaking union duties outside of working hours.

Zero hours contracts

Zero hours contracts have come under particular scrutiny, with the emphasis being placed on whether employees should be allowed to employ workers for exclusive employment with the business and without the possibility of contracted employment elsewhere. Bringing an end to the legislation allowing this was originally suggested in 2014 by the outgoing coalition government as part of the Small Business, Enterprise and Employment Act 2015, which came into force on 2nd June 2015.

Altering zero hours contracts in this way has been welcomed by many workers, business owners and politicians, but has also been criticised by some legal representatives due to the an ill-defined criteria over what such a change will include.

This is due to a lack of clear legislation on how to prevent employers from deciding to reduce employee hours once they become aware a worker has a second job. There are also no set rules preventing an employer from then reducing or ending further working hours for that employee at their company.

Concern has also been expressed by some organisations over this lack of Zero Hour contract rules. The Unite union has expressed its worry that when workers are employed in more than one zero-hours position there will be no way to ensure that they can be sure of having at least one of their positions safe.

Furthermore, this new legislation will not guarantee a minimum number of working hours per week for employees, and that the generally negotiable nature of a zero-hours contract will be seized upon by employers hoping to adjust employment opportunities for workers.

Leave for paid volunteering

Another new area of legislation concerning employees of public sector businesses is that they will soon have the right to embark upon three days of paid volunteering work per year at the expense of their regular job should they wish to do so .

The chance to undertake voluntary work with a trade union is not allowed as part of this new right, but the opportunity to perform voluntary work for a political organisation is still being considered.

Gender pay law

One area of employment legislation that has finally been passed is that employers with a staff of 250 or more must now disclose the difference in pay between their male and female workers. The Conservatives refuted this idea when initially suggested by The Labour Party in 2010, but the Liberal Democrats finally granted it in what was ultimately one of their final acts as part of the coalition government earlier this year.

What We’ve Learned From The 2014 Public Concern At Work Report

Public Concern at Work (PCAW), the popular UK whistleblowing protection charity‘ has published its new report detailing the results of Employment Tribunal cases that took place between 2011-13.

PCAW provides a exploration of all employment tribunal activities, with particular emphasis placed on how tribunals have protected the rights of whistle-blowers in accordance with The Public Interest Disclosure Act 1998 (PIDA); legislation that is vital for ensuring the safety of employees across different sectors of all UK industries.

Read on to learn of the outcome assessed by the report.

Details of the report

A total of 2,969 cases consisting of both full and preliminary hearings were evaluated. This analysis found that just 1,260 of these cases were final rulings granted after a full hearing was conducted.

Moreover, as few as 12% of these cases were actually successful on grounds that reflect the authority held by the PIDA. Other forms of evidence were responsible for a further 26% of the cases, and the remaining 62% consisted of either claimant losses or the case getting thrown out by the tribunal.

Positive outcomes

Whistleblowing cases were generally very successful between 2011-13, with a total of £7.3 million being awarded to claimants during this time. Although this figure is not close to the full amount provided in whistleblowing cases as the majority of them are settled before a tribunal is necessary.

PCAW findings also concluded that acts of whistleblowing are increasingly likely to be reported to parliament by officials employed across all areas of UK business. This suggests that employees now feel comfortable enough to voice their concerns without feeling anxiety over the consequences of whistleblowing.

Negative outcomes

There has unfortunately also been a number of negative results recorded by PCAW. One major concern is that 11% of all whisteblowing instances relate to scenarios in which an employer considers a employee to have acted in ‘bad faith’. This figure is considerably higher than the last PCAW assessment conducted in 2009.

Bad faith is a rebuttal that states the employee acted in a manner showing disregard for the overall welfare of the business, which if proven can refute a claim or overturn a tribunal verdict at a second hearing.

The increase in bad faith cases suggests employers are placing blame too readily on an employee’s motives rather than judging whether the claim is valid enough to bypass an individual’s concerns to be in the interest of the general public.

This kind of reaction from employers was at the heart of PCAW’s recent effort to encourage the government to remove the ‘Good Faith’ test from being part of employment law legislation, thereby eradicating the possibility of an employer claiming that an employee acted in bad faith as a result of whisteblowing. The effort has thus far been reasonably successful, as the law has been altered so that employers are now being actively encouraged to focus on the content of whisteblowing cases without expressing undue judgement on their intentions.

The report found that claims of discrimination and harassment in the workplace are the most frequent forms of complaint relating to whistleblowing cases.

Claimant issues

PCAW also outlined the serious concerns that many claimants have in regard to tribunals. One area of concern is that a massive 56% of claimants do not have legal representation when lauching their claim. This unsurprisingly makes them far less likely to be successful at tribunal.

This is a concern made much worse by a trend that shows an increase in the tribunal fees set for claimants, even though respondent fee claims are considerably lower. The PCAW report alleges that the difference in costs is being used as a sly way to deliberately discourage claimants from taking a claim to tribunal.

The result of tribunal fees

Since July 2013 claimants have been responsible for paying the bulk of tribunal fees, and it comes as no surprise that the PCAW report records a 20% drop in claims getting made since the change, with the total cost of all whistleblowing cases between now reaching £750 million.

Interim relief assessment

Interim Relief is a process that allows an employee to make a reinstatement claim if there is good reason to believe that a second hearing may result in the first ruling getting overturned. An Interim Relief application must be processed within seven days of the dismissal, and if successful, the Tribunal will issue a ‘continuation order’, instructing the employer to continue payment of the claimant’s wages up until the next tribunal ruling.

The report found that Interim Relief cases were responsible for 57 of the 2,969 claims, although just 7% of them actually ruled in favour of the claimant.

Whistleblowing claims across each sector

The report found that 66% of all whistleblowing cases that evoke The Public Interest Disclosure Act 1998 were made in the private sector. The health and care sectors are responsible for 21% of the overall number of cases brought before tribunal as the majority of whistleblowing actions are resolved independently before a tribunal hearing is required.

The education sector has also seen an increase in the overall number of whisteblowing claims made since 2009, rising from 5% to 7% of all cases recorded. The possible cause of this increase is the UK’s lack of a local governing authority that would monitor the increasing volume of academies and free schools located across Britain.

Additional results

Other important factors revealed by the PCAW report include the revelation that safety concerns account for 12% of all whistleblowing cases, and that claims of financial misconduct are responsible for 9%.

Another interesting revelation contained in the report is that 91% of whistleblowing cases find an employee raising their concerns in the place of employment before seeking legal action for whisteblowing. Although a surprising 81% of these worries are not made directly to an employer but to a different authority within the organisation.

Please be aware the PACW state that an all-inclusive legal review of all data contained in the report is not possible due to the lack of available access to an open register of claims.

Police Dog Handling Trio Claim Whistleblowing Discrimination

In an ongoing Whistleblowing case in Bristol, three female police-dog handlers have taken Avon and Somerset Police to tribunal with allegations that they were harassed by ‘sexist male colleagues’ following their decision to speak out about witnessing animal cruelty to police-dogs. This includes an alleged incident in which fellow police officer Paul Nesbit-Bell threw a dog against a wall.

The three women have made 95 claims against Avon and Somerset Police between them. Mandy Gornicki, 51, has said that she and her colleagues were ‘ostracised’ by their peers in the police force, and were verbally abused by male peers behind their backs on several occasions. A fourth female officer is also alleged to have been harassed but has declined to participate in any legal action.

Ms Gornicki’s fellow claimants Ann-Marie Williams and Erica Martins are due to express their views as the six week tribunal continues.

Hostile behaviour within the force

Ms Gornicki, who has eighteen years of policing experience, has claimed that it was the women’s act of whistleblowing that started a generally hostile attitude towards them, which involved a series of petty instances intended to make their working life difficult.

This includes an occasion in which Ms Gorkicki was deliberately given an inadequate dog kennel for a puppy she was training even though her male peers received brand new ones. Ms Gornicki says that instances like these were designed to cause her to fail in her job as a dog handler.

She also believes that she was deliberately given a dog with behavioural problems in order to hinder the speed of her overall performance and make her look incompetent in the process. The goal of such treatment was to ultimately dishearten her to the point of leaving the force.

Ms Gornicki also believes there is sufficient evidence to prove that she and her fellow whistleblowers were intentionally separated during training courses in order to prevent further instances of whistleblowing between them.

When cross examined during her tribunal hearing, Ms Gornicki faced accusations that she is exaggerating her testimony through amplified examples of treatment that was be no means exclusive to her.

Sexist Attitudes of male officers

Ms Gornicki also claims that sexist comments were slyly directed towards the three women. This includes an alleged occasion when chief inspector Paul Mogg suggested women were not able to match the skill of male officers during riot situations. This comment was likely directed at Ms Gornicki personally because she and Inspector Mogg had worked alongside each other during a riot in the recent past.

Sheold the tribunal that the sexism experienced by the three women also centred around hostility to animals in response to their whistleblowing as such cruelty would not have happened in the presence of male dog handlers. Ms Gornicki claims this was done in an attempt to antagonise the claimants and intimate them into leaving the force.

These allegations come during an already controversial period for Avon and Somerset Police, as chief constable, Nick Gargan, is currently awaiting a misconduct hearing on claims he made ‘inappropriate advances’ towards junior female officers.