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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

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

Context is key in claims of harassment

In the recent case of Evans v. Xactly Corporation Limited the EAT considered whether calling an employee a "fat ginger pikey" constituted harassment relating to disability and/or race. In the particular circumstances of this case, the EAT held that it did not.
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Context is key in claims of harassment

Employers can be vicariously liable for the violent conduct of their employees outside work

In Bellman v Northampton Recruitment Limited (NRL), the Court of Appeal decided that NRL was liable for its Managing Director drunkenly assaulting another employee at an “impromptu” drinks event after a work Christmas party. There was a sufficient connection between the Managing Director’s employment and the assault. This is an important case for employers to be aware of in the run-up to the Christmas party season.

Facts

Mr Bellman was a Sales Manager at NRL. After the NRL Christmas party, he and a number of colleagues went to a hotel bar for an “impromptu” drink. At the hotel, the employees discussed a work matter. The Managing Director lost his temper and told the employees that it was he who owned the company and made the decisions. Mr Bellman verbally challenged the Managing Director, who punched him twice. As a result of this, Mr Bellman suffered severe brain damage.

Mr Bellman sued NRL for damages, on the basis that NRL was vicariously liable for the assault.

Decision

The High Court dismissed Mr Bellman’s claim, holding that the Managing Director was not acting in the course of his employment when he assaulted Mr Bellman. The drinks were impromptu and each employee had a personal choice as to whether or not to attend. The fact that work topics were discussed at the drinks did not mean that there was a sufficient connection between the Managing Director’s employment and his wrongful conduct in assaulting Mr Bellman.

The Court of Appeal overruled the High Court’s decision, finding that there was a sufficient connection. The Court of Appeal noted that it was important to look at the level of authority of the Managing Director – in this case it was very wide, as he had no set working hours, he controlled the way he worked and he made all management decisions. In the Court of Appeal’s view, at the hotel he had exerted his authority over the employees when telling them that he made the decisions in relation to NRL.

Comment

The outcome of this case turned on its (very specific) facts. The “close connection” test for vicarious liability gives the courts a broad discretion and employers should be aware that they will not always be vicariously liable for the conduct of employees in arguments outside the workplace that relate to work matters. The key differentiating factor in this instance was that the Managing Director had a significant amount of management responsibility and authority which he exerted over the employees at the after party.

As we approach the Christmas party period, employers should remind their employees (and in particular, senior management) about behaving appropriately. This can include communicating with employees about what is expected of them at office parties as well as the policy for coming into work the following day. This will assist in reducing the potential risks that employers face in the festive season.

Employers can be vicariously liable for the violent conduct of their employees outside work

Five-fold rise in workers taking their employers to tribunals

The number of workers in Scotland taking employers to task in the Employment Tribunal over unfair pay and conditions has seen a five-fold increase after controversial Employment Tribunal fees were scrapped. The fee regime, which saw employees paying up to £1,200 to pursue a case, was scrapped in July last year following a Supreme Court ruling that the charges were unlawful. Current UK government figures show equal pay cases accounting for the bulk of claims – an increase of 360%. Unfair dismissal claims also increased by 84% over the period, while sex discrimination claims went up by almost 50% and disability discrimination claims increased by 100%.
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Five-fold rise in workers taking their employers to tribunals

Employment Tribunal (ET) quarterly statistics published

In September 2018, the Ministry of Justice (MOJ) published its quarterly (April-June 2018) ET statistics. The statistics reveal that the number of single claim cases have more than doubled - up 165% to 10,996 compared to the same quarter in 2017. The number of multiple claim cases have increased by 344% to 42,700 compared to the same quarter in 2017. The trajectory of claims increasing continues from earlier this year (January-March 2018) – where single claim cases increased by 118% and multiple claim cases increased by 40% compared to the same quarter in 2017.
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Employment Tribunal (ET) quarterly statistics published