The case of Mr K Legge v. Environment Agency 3314044/2021 spotlights the intricate balancing act faced by employers in responding to employees’ beliefs, as well as the issue of unauthorised secondary employment. The Employment Tribunal (ET) panel ruled on the status of non-feminist views and the approach necessary to handling an employee’s engagement in secondary employment. This led them to the conclusion that the Claimant’s views were “discriminatory” and that his engagement in alternative work during normal business hours was “dishonest”. His claims were rejected.
Factual background
Mr Legge found himself at odds with his supervisor who was promoting the Agency’s commitment to diversity and inclusion. Their relationship deteriorated after a performance review, where Mr Legge was deemed to be “approaching expectations” and was provided with a performance improvement plan. During this time, he became uncooperative and, upon his return from special leave, he raised a grievance against his supervisor alleging gender discrimination. It was then discovered that he was working as a psychotherapist during work hours. He was dismissed on the grounds of misconduct due to dishonesty and fraud.
Mr Legge held what were described as non-feminist views and made a claim of direct discrimination on the grounds of religion and belief, sex discrimination and victimisation along with a claim of unfair dismissal, alleging that he was treated unfairly because of his non-feminist beliefs.
Non-feminism and the Grainger criteria
The ET addressed the belief issue first. The Environment Agency had committed to achieving greater diversity and inclusivity. Mr Legge was unhappy with this objective which he considered at odds with his non-feminist beliefs. The ET described themselves as being “slightly perplexed” by what these beliefs encompassed. They considered that feminism is about all genders being equal. Despite this confusion, the ET applied the Grainger criteria to assess whether Mr Legge’s views were protected under the Equality Act 2010 (Equality Act).
The Grainger criteria, established by the Employment Appeal Tribunal in Grainger plc v. Nicholson, encompasses five key elements that a belief must satisfy to be protected under the Equality Act. These include that the belief must:
- be genuinely held;
- be a belief as opposed to an opinion based on current information available;
- concern a substantial aspect of human life and behaviour;
- attain a certain level of seriousness and cohesion; and
- be worthy of respect in a democratic society, not incompatible with human dignity and fundamental rights of others.
When Mr Legge’s non-feminist views were measured against the Grainger criteria, the ET concluded that they failed to satisfy the elements of a protected philosophical belief primarily because those beliefs were incompatible with human dignity and the fundamental rights of others. While accepting that Mr Legge genuinely held his beliefs, the ET also considered that Mr Legge’s beliefs were questionable in their level of seriousness, cohesion and connection to human life and behaviour. The ET determined that Mr Legge’s philosophical beliefs were discriminatory in themselves and fell short of the protection afforded by the Equality Act.
The ET went on to decide that, even if Mr Legge’s beliefs were protected philosophical beliefs, his discrimination claims failed because his dismissal was attributable solely to his own capability or conduct, rather than discrimination on the grounds of these views.
Moonlighting and managing secondary employment
Having rejected protection of the Claimant’s non-feminist views, the ET considered whether moonlighting may constitute misconduct and therefore whether his dismissal was justified. Besides his role as a senior manager, Mr Legge covertly worked as a psychotherapist, taking appointments during working hours, while benefiting from a full salary through the role he held with the Environment Agency and also using the Agency’s equipment to carry out his counselling role. The ET found that this constituted the ultimate reason why he was dismissed from his role, with the ET ruling that Mr Legge used his care responsibilities and lack of performance as a tool to mask his second job.
Employers should manage secondary employment from the very beginning of an employment relationship. Many contracts of employment prohibit employees from having a second job without the employer’s prior agreement. There are many reasons for such provisions, including requiring the employee to devote their full time and attention to the employer’s business during working hours, to ensure they do not exceed sensible working hours and become unable to work satisfactorily, and to minimise conflicts of interest. Codes of conduct or disciplinary rules also prohibit other employment without the employer’s prior agreement, although there needs to be a recognition that those working less than full-time may want or need to have other jobs.
Key takeaways
Whilst a belief of any sorts can be held genuinely and concern important aspects of human life, it does not mean that it will automatically be protected under the Equality Act. Regard must be given to other people’s rights and the underlying principles of society. Beliefs can be discriminatory, particularly if they are inconsistent with basic human dignity, as the ET found was the case with Mr Legge’s “non-feminist” views.
Employers should also be clear about their policy in respect of second jobs and then be vigilant and proactive in managing this. In such cases, a well-drafted employment contract is the first line of defence, complemented by a comprehensive and fair disciplinary procedure, allowing employers to investigate and assess the situation adequately if required, whilst minimising the risks of unfair dismissal claims.
