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Food for thought: Employment Tribunal to consider whether ethical veganism is protected under discrimination legislation

In March 2019, an Employment Tribunal will decide for the first time whether ethical veganism is a “philosophical belief” under one of the nine protected characteristics covered by the Equality Act 2010, namely “religion or belief”. If the Employment Tribunal decides that it is, then it would still likely be subject to appeal. So it would unlikely finally determine issue.

It is unlawful for an employer to discriminate directly, by treating an employee less favourably than others because of their religion or belief.

Case law has set out a series of tests to determine whether a philosophical belief falls within the scope of the protected characteristic, “religion or belief”.

If the Tribunal decides that ethical veganism is a protected characteristic, then the discrimination claim will proceed to a full hearing.

Jordi Casamitjana claims he was dismissed from his role as head of policy and research at the League Against Cruel Sports after raising concerns to his manager and other employees that it was investing pension funds in companies that tested on animals. He alleges that as a result of his disclosures he was unfairly disciplined and subsequently dismissed. Mr Casamitjana claims that the reason for his dismissal was due to his philosophical belief in ethical veganism.  The League Against Cruel Sports says he was dismissed for gross misconduct and denies that he was dismissed because of his veganism.

If the Tribunal finds ethical veganism to be a protected characteristic, subject to the first instance decision not being overturned on appeal, it will ensure ethical vegans are protected against discrimination (direct and indirect), harassment and victimisation.

Practically speaking, if vegans are given protected status then employers will need to understand more about what veganism means in practice and consider any particular needs vegans may have in the workplace.

Food for thought: Employment Tribunal to consider whether ethical veganism is protected under discrimination legislation

Employment Tribunal not bound by list of issues that miscategorises claim

In the recent case of Saha v Capita plc the Employment Appeal Tribunal (EAT) held that an Employment Tribunal (ET) is not compelled to rely on a list of issues that wrongly categorises the claim to be heard.

The Claimant was employed as an assistant management accountant. In an email she alleged that the Respondent subjected her to a detriment by asking her to work the year-end hours proposed as they were:

  • detrimental to her health and safety; and
  • in breach of the Working Time Regulations 1998 (WTR).

Following the email, the Claimant received an offer to terminate her employment in return for a payment of £10,000. She then lodged a claim with the ET pleading both of the above matters as protected disclosures.

An agreed list of issues was prepared at the outset of the hearing but categorised the WTR allegation as a working time detriment claim rather than detriment on the ground of making a protected disclosure. The EAT held that the ET failed to consider the substance of the claim.

The EAT relied on the Court of Appeal case of Parekh v London Borough of Brent [2012] which made clear that an ET is not bound by the list of issues agreed and the core duty of the court is to hear and determine the case in accordance with the law and evidence. The claim was remitted to the same ET to decide whether the email contained a protected disclosure of a likely breach of the WTR.

This decision is a reminder that an agreed list of issues is not set in stone. If a list of issues is wrongly categorised then it is the duty of the ET to determine the case in accordance with the law and evidence.

Employment Tribunal not bound by list of issues that miscategorises claim

Government framework for voluntary reporting on disability, mental health and wellbeing: what is expected of employers?

Following the 2017 Thriving at Work Review, the government has developed a framework to support large employers with recording and voluntarily reporting on disability, mental health and wellbeing. The government hopes that transparency in this area will help drive the culture change which is needed to foster a more inclusive society.
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Government framework for voluntary reporting on disability, mental health and wellbeing: what is expected of employers?

Further inquiry into the use of non-disclosure agreements in the workplace

Yesterday was the final day for public submissions to the Women and Equalities Committee's (WEC) inquiry into the use of non-disclosure agreements (NDAs) in harassment and discrimination cases. This new inquiry follows on the heels of the WEC's report on sexual harassment in the workplace, in which it called for the use of NDAs to be "cleaned up" and for the misuse of NDAs in the context of sexual harassment to become an offence. We also commented on this report in our August newsletter.

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Further inquiry into the use of non-disclosure agreements in the workplace

Labour of love: foster parents are not workers under the Working Time Directive

In a case referred by the Romanian courts, the ECJ has held that foster parents are not workers for the purposes of the Working Time Directive. This makes it more likely that cases currently pending before employment tribunals in the UK on foster parents' entitlement to holiday pay are likely to be unsuccessful.
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Labour of love: foster parents are not workers under the Working Time Directive

Is it safe to dismiss an employee who is receiving long-term disability benefits?

The EAT has dealt a blow to employers, confirming that the purpose of permanent health insurance and similar schemes would be defeated if an employer could end entitlements under this type of scheme by dismissing the employee on grounds of capability. 
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Is it safe to dismiss an employee who is receiving long-term disability benefits?

Disciplinary investigations: Common sense and even-handedness should prevail

In the recent Employment Tribunal (ET) case of Ball v. First Essex Bus Limited, the claimant, a 60-year-old bus driver who suffers from diabetes, has been successful in his unfair dismissal claim. He persuaded an ET that his dismissal for being under the influence of cocaine whilst on duty was both substantively and procedurally unfair. The claimant had failed a random drug test.

This case shouldn’t instil fear in employers who require to carry out random or “with cause” drug testing despite the attention-grabbing headlines that have been published in response to the ET decision. It should, however, serve as a useful reminder to employers to follow their own policies and procedures (which should be regularly updated) as well as the ACAS Code of Practice on Discipline and Grievance even in the face of (or perhaps particularly in the face of) very serious, career-ending, allegations. In this case the employer failed to follow its own drug and alcohol policy and contractual disciplinary policy. Importantly the drug and alcohol policy expressly allowed an employee to challenge the results of a positive test but the respondent did not bring this to the employee’s attention. The policy also required that an independent laboratory identified by the employee carry out a second test. This didn’t happen either. In addition the disciplinary policy provided that both investigating officer and disciplinary manager must carefully consider any verbal or written evidence submitted by the employee or their representatives. This was roundly ignored.

The judgment sets out a very good summary of what the ACAS Code requires an employer to do when operating any disciplinary procedure or process and in particular that an employer should keep an open mind and look for evidence that supports the employee’s case as well as evidence against it. In this case it appeared to the judge that “the respondent would pursue any avenue that would shore up the case against the claimant yet ignore any factor that might support the claimant’s position”. The judge also commented that “any disciplinary process requires a degree of common sense”.

The claimant’s position on cross-contamination (by handling cash and his fingers coming into contact with his mouth) was all but ignored despite being “open to the issue” as far as the judge was concerned. The employee had long service and an unblemished record. The fact that all four senior managers involved in the disciplinary process (investigation, disciplinary, first appeal and second appeal) found it odd that a 60-year-old man who suffered from diabetes, had no history of drug taking whatsoever, had an unblemished record, was of good character and whose managers were surprised that he had allegedly taken cocaine meant that any reasonable employer would have made further enquiries.

Disciplinary investigations: Common sense and even-handedness should prevail

Part-time workers: hours -v- pay

The Court of Appeal has agreed with the lower courts that a part-time cabin crew member had been treated less favourably than a full-time crew member, because she had to be available for work 53.5% of the year but was only paid 50% of the full-time salary (British Airways plc v Pinaud).
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Part-time workers: hours -v- pay

Addison Lee drivers found to be workers: what can we learn from the latest case on worker status?

Barely a week goes by without worker status finding its way back into the headlines. The EAT this week upheld a tribunal's decision that three private hire drivers engaged by Addison Lee, which offers various transport services, are workers. The EAT confirmed the tribunal's ability to look beyond the contract in place to the reality of the working arrangements and endorsed the adoption of a "realistic and worldly-wise" approach.
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Addison Lee drivers found to be workers: what can we learn from the latest case on worker status?

Dismissal of pilot with anxiety-related sickness absences held to be procedurally unfair

In Matthew Guest v. Flybe Limited, the Birmingham Employment Tribunal considered whether the dismissal of a pilot who had various anxiety-related sickness absences was fair and found that it was not.
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Dismissal of pilot with anxiety-related sickness absences held to be procedurally unfair