Who wins a clash of rights?

Given the stress and expense of taking or defending a case at employment tribunal, you would perhaps expect a thorough, fair hearing and an outcome that is at least legally accurate.

But clients speak of their experiences at tribunal as a lottery. There is some statistical support for this: EAT statistics in recent years reveal 40% (sometimes more) of employment tribunal decisions are overturned after a full appeal hearing. Not every case appealed to the EAT makes it to a full hearing but this is still a surprisingly high level of success at appeal.

I recently read a summary of an employment tribunal case which looked like another case ripe for appeal. The summary suggested a nursery employee (Miss Mbuyi) who was an evangelical christian had been discriminated against for inappropriately telling a lesbian colleague at work that God would not approve of her lifestyle. The decision seemed wrong: surely it was the colleague who had been discriminated against (the comment had caused offence) not Miss Mbuyi.

However, on reading the whole case report, the decision is a useful reminder of how a "clash of rights" case should be determined. Context as always is relevant: the colleague had in fact asked Miss Mbuyi about how she would be welcome at her church. Miss Mbuyi had given an honest reply (the gist of which was yes she would but to God homosexuality was a sin). This had caused genuine offence - but the colleague had asked the question half expecting she would not like the answer.

The nursery decided to discipline Miss Mbuyi - and the ensuing procedure was a case study in how not to discipline fairly (vague allegations; patchy investigation; a witness involved in the decision to dismiss). These procedural issues contributed to moving the burden of proof to the employer to prove that discrimination had not taken place. The employer failed to do this because its decision seemed to be based on stereotypical assumptions about an evangelical christian targeting a lesbian colleague.

So what should the employer have done? A warning may have been appropriate - for Miss Mbuyi and her colleague. Discussing personal matters at work in a way which may give rise to offence is arguably inappropriate particularly if this is made clear in a well drafted disciplinary policy. The employer should also have trained its managers in fair disciplinary processes - particularly the importance of a good quality investigation that explores inconsistencies between accounts of events before a decision is made.

A final point of interest is that Miss Mbuyi's lawyer argued people from European countries are dissuaded from coming to work in the UK because it has a Europe wide reputation for prioritising rights relating to sexual orientation over those of religious conviction. The recent "Gay Cakes" case (now subject to appeal) received a lot of publicity and may have contributed to that view - but the tribunal did not accept that argument in this case. The outcome is itself evidence to the contrary - and any appeal would be unlikely to succeed.me