Recently, indirect religious discrimination has been in the news – with a bit of a twist.
With the ever-growing awareness for the environment, there is demand for businesses to be more environmentally-friendly. But it is less clear which strategies cross the line between forcing views on employees and those that encourage employees to make changes to their lifestyle.
Recently, a global company ‘WeWork’ (known for providing services to entrepreneurs)) have informed employees that meat, pork or poultry will not be an available option at company events as part of a company move to become more eco-friendly. WeWork go further and say that employees will be exempt from being reimbursed if they do choose a meat option.
Co-founder Miguel McKelvey’s view is that this contributes towards environmental protection and thus, keep up with the times. Research suggests over 25% of evening meals consumed by the UK population are meat- free. Mr McKelvey has said that the company could save “more than 15 million animals by 2013 by eliminating meat at our events.
The usual schemes are aimed at reducing plastic waste, planting additional trees etc.
Whilst WeWork’s bold move has good intentions, this arguably infringes an employee’s personal choice. Wework must be careful to ensure that this new policy does not disadvantage employees who don’t share the same viewpoint. This is because philosophical views are protected in the same way as religious views. Beliefs such as humanism, pacifism, vegetarianism and the belief in man-made climate change are all protected. Carnivore employees may well complain that WeWork should alter its policy to remove the disadvantage, or risk being liable for an indirect ‘religious’ discrimination claim.
WeWork do express they are not banning employees from eating meat altogether. However, it is clear that those who wish to do so during work hours are at a financial disadvantage. It seems to us that hosting a vegetarian-only barbecue would probably not place carnivore employees at a disadvantage but that providing a meat option more expensively might, as there is no business reason for it. Our view might be different if the company had an ethical stance to uphold as part of the reason for its existence.
An Employment Appeal Tribunal case (Chatwal v Wandsworth Borough Council) is relevant. Mr Chatwal’s employer introduced a new requirement that staff using the communal kitchen should clean the kitchen surfaces and the fridge. Staff members would occasionally come into contact with meat or meat products.
Mr Chatwal told his employer that compliance with the new requirement would conflict with his religious belief as a Sikh. Although, he was happy to clean other areas of the kitchen, he refused to clean the fridge. He was told he was not allowed to use the kitchen any longer.
Mr Chatwal lost his claim of indirect religious discrimination at the employment tribunal as he had failed to show that at least some Sikhs shared the same religious belief about touching meat. But he got his evidence about the beliefs of the Sikh religion together for the appeal. Expert evidence and letters from significant members of the Sikh society were relied on and the appeal allowed.
By Olivia Ferriday
Image used under CC courtesy of Jeremy Keith
Being harassed at work is in the news more than ever before following the recent allegations about Harvey Weinstein, Kevin Spacey, Bill O’Reilly, Morgan Freeman and others.
The trade union Prospect recently carried out a study surveying 7,000 workers (40% female, 60% male) across a range of industries. The women reported that:
- 35% of them had experienced being harassed at work (62% of women aged under 30);
- 27% had received suggestive remarks and sexual jokes;
- 25% had received unwanted comments about their appearance;
- 17% reported unwelcome sexual behaviour ; and
- 14% had suffered unwanted touching, hugging or kissing.
According to the study (which confirms the results of a TUC study two years ago), the victims of sexual harassment are more likely to be under the age of 30, with the suggestion that victims are too intimidated to report sexual harassment to their employer.
Comments made by participants included:
- ‘On the sexual harassment complaint I was made to feel like I was to blame and didn’t feel like I had much support.’
- ‘I have lost a job after bringing up sexual harassment from a manager.’
Prospect said the study showed sexual harassment was ‘endemic in all parts of the economy’.
This study illustrates that despite this issue rearing its head year after year, female employees are still being harassed at work. Employers can take steps to help reduce sexual harassment in the workplace, including:
- Extra training for all staff; and
- Creating a policy making it clear that sexual harassment will not be tolerated and appointing specific individuals to complain to; and
- Keeping records of reported sexual harassment and doing annual audits so to keep this issue on the radar.
Women report being harassed outside work as well as being harassed at work and so sexual harassment is a societal issue as much as it is a workplace issue. With much of society spending a quarter of their lives in the workplace, eradicating sexual harassment at work would be a big step towards eradicating it elsewhere.
By Aneesha Ali-Khan
From time to time we are contacted by journalists seeking background information or a legal angle on a news story, such as this one about positive discrimination. We have written about this topic before. We are always happy to help them because it minimises the misinformation about employment law in the media. Even though they generally call us with little notice to meet their publication deadlines!
One such story recently was that the Metropolitan Police is introducing extra help to minorities with the cost of training in order to promote diversity. It will give new recruits £1000 towards the cost of a certification if they are female or from an ethnic minority, but White entrants and males get only £500. One person’s positive discrimination is another person’s negative discrimination.
There are several different types of unlawful discrimination, including direct, indirect, harassment and victimisation and a couple of others. This is direct discrimination.
There are very limited exceptions when direct sex or direct race discrimination is lawful. The Met is relying on the exception for positive discrimination. This legitimises what would otherwise be unlawful direct sex or race discrimination if all of the following are true.
- The employer believes that minority entrants are not proportionately represented.
- That belief doesn’t have to be right, only one that a reasonable employer would have.
- The employer takes steps to enable or encourage minorities to participate.
- The steps it takes must be ‘proportionate’. This means carefully applying a balancing exercise, taking into account factors such as the size of the diversity gap, the amount of help being given to the minorities, the seriousness of the socio-economic difference and the existence of other, less discriminatory ways of fixing the issue.
It’s natural to want to diversify your workforce, and positive discrimination is probably the only way to do it if you are not getting diverse applications, but those who are being discriminated against might have questions about whether this decision is proportionate; questions such as this:
- How has the employer arrived at a one-size funding amount? Was it carefully-calculated or just pulled out of the air?
- How come the funding is the same for both women and ethnic minority candidates? This looks like a broad-brush approach. If women are better- or worse-represented in the Police than candidates with an ethnic minority background, did the Police consider giving them different funding amount?
- Similarly, is it appropriate to treat all those with a minority background with a broad brush? For example, the Black community might be well-represented whilst Asian staff are less well-represented. But both minorities get the same funding.
- If other forces follow suit, will the funding be the same as the Met’s, or will it be tailored because other parts of the country have a difference diversity profile?
- What will a candidate need to do to show that they qualify for the extra funding – is it enough to tick a form, or to honestly identify as such, or to reasonably identify as such? Our understanding (eg from here) is that the Met will rely on self-declared ethnicity data. If so, could this measure and similar measures provide an incentive for more people to self-declare as having minority status in future? Positive discrimination could lead to a ‘tickbox culture’, where the diversity figures start looking better even though the diversity of the workforce doesn’t really change.
Journalists with queries should email us on firstname.lastname@example.org.Read More
From time to time we tell you about a Birmingham employment law case we have recently dealt with. Our other stories are here. This is the story of Ian’s dismissal after an unfair disciplinary from a well-known company after 36 years of service.
Ian, age 56, was a foreman working on large infrastructure projects. With over 36 years of knowledge within his field, Gurdeep’s dismissal came as a shock.
Ian was issued with a company van to help complete his daily tasks. As the company owned many vehicles, it had its own fuel pump at the depot, where Ian was the only employee trained and authorised to fuel machinery. An electronic fob was issued to Ian which recorded how much fuel he dispensed from the pump.
The company were well aware that the small tanks they issued could only hold a certain amount and this was not sufficient to last for the working day. Therefore, Ian (thinking proactively) would fuel up several jerry cans to top up the tank whilst out on site. This is precisely why the company issued jerry cans in the first place!
Ian’s employer became aware that Ian was drawing more fuel than the van’s tank’s capacity to hold fuel. This led it to believe that Ian was taking the extra fuel for his own personal use and therefore an investigation was. carried out. Evidence included in the investigation was offered by another employee, Steven, who had a personal vendetta against Ian and wanted him sacked. Other colleagues of Ian stated when they need extra fuel, Ian gave them some of his fuel, showing where the extra fuel went too and was in fact not for Ian’s personal use as alleged.
It is important to remember when an employer is carrying out an investigation, it must be conducted fairly and reasonably. Making a decision after an unfair disciplinary investigation can make any subsequent decisions or action unfair, and leave an employer vulnerable to legal action.
In the appeal, Ian’s employer refused to hear new evidence produced by Ian and his representative. He complained the accusations made were instigated by his manager, who for an unknown reason, took a dislike to him.
Unfortunately, Ian was unfairly dismissed from his job.
We helped Ian to bring a claim of unfair dismissal in the Employment Tribunal on the basis that the employer simply conducted an unfair disciplinary and as a result got the decision wrong.
Image used under CC courtesy of DennisM2
Cancer has always been a disability for the purposes of disability discrimination under employment law. There are particular conditions that are whitelisted as disabilities under the Equality Act, cancer being one of them.
The Employment Appeal Tribunal (‘EAT’) recently looked at whether a ‘pre-cancerous’ diagnosis is a ‘deemed disability’ under the EA.
Mrs Lofty was a café assistant from 2001. In 2014 she noticed a blemish on her left cheek. The hospital told that her biopsy results were consistent with lentigo maligna, cancerous cells that could result in skin cancer. She signed off work on 17 August 2015 to go through surgery to deal with these cells. In mid-September, she was cleared of any possible cancer. She continued to be signed off work for related health issues and suffering extreme anxiety until 17 December 2015.
First Café reviewed her attendance and dismissed her for failing to attend meetings to discuss her continued absence from work.
Mrs Lofty lodged a tribunal claim for disability discrimination. She argued that her pre-cancer was deemed to be a disability under the Equality Act. The tribunal observed her diagnosis as ‘pre-cancerous’, and so thought Mrs Lofty hadn’t suffered cancer within the meaning of the Equality Act, concluding that she wasn’t disabled.
Mrs Lofty appealed to the EAT.
The EAT concluded that because Mrs Lofty had cancerous cells in the top layer of her skin, that this was a deemed disability for the purposes of the EA. The EAT commented that Parliament didn’t exclude minor cancers from this protection. The EAT also commented that a diagnosis of pre-cancerous cells may mean something different depending on where the cells are to be found, but that for skin cancer, it is a type of cancer.
The EAT’s clarification that pre-cancerous conditions can be recognised as cancer has potentially expanded the number of people that are protected automatically by the Equality Act. In light of this, employers should be cautious about how they treat employees with pre-cancerous conditions because this case illustrates that such conditions can, depending on the medical evidence, be recognised as a deemed disability.
By Zahid Reza
Case report: Lofty v Hamis (t/a First Cafe) 
Image used under CC courtesy of bndF1Read More
A failure to make reasonable adjustments is a type of disability discrimination claim that individuals can bring against their employer. This is where an employer fails in its duty to provide suitable (or reasonable) adjustments to accommodate disabled employees at work. One of the ingredients is to show that there is a practice, criterion or provision (‘PCP’) that puts the disabled person at a particular disadvantage compared to those who are not disabled.
We look at a recent Court of Appeal case which looked at whether an expectation can count as a PCP.
The claimant, Mr Carreras, worked for United First Partners Research (‘United First’) in October 2011. Upon starting his employment, he worked long hours (from 8.00am until around 11.00pm). In July 2012, Mr Carreras was involved in a cycling accident which affected him physically and emotionally. He returned to work in a few weeks, but experienced symptoms such as dizziness, fatigue and headaches. United First were aware of this and were content for him to tell them how long he felt able to work. He initially worked up to 8 hours per day, then gradually worked longer hours. From October 2013, United First asked Mr Carreras to work long hours. Although working these hours were difficult, Mr Carreras didn’t complain until February 2014, when he had an argument with one of the owners and then resigned.
Mr Carreras lodged a claim in the Employment Tribunal, accusing United First of ‘requiring’ him to work unsuitable hours. The tribunal found there was no discrimination because he was never ‘required’ to work in the evenings; this was only an expectation and therefore not a PCP. Mr Carreras appealed to the Employment Appeal Tribunal (‘EAT’), who allowed his appeal and found that the ‘expectation’ from United First constituted a PCP.
United First appealed this decision to the Court of Appeal, which dismissed the appeal. They commented that a ‘requirement’ does not necessarily mean ‘coercion’, and that it may represent no more than a ‘strong form of request’.
The CA’s decision to loosen the law in this way means that employers must recognise the dangers of pressurising disabled employees at work, as this could give rise to a PCP that is discriminatory to disabled employees. The rationale in stating ‘no more than’ a strong form of request implies that a one-off request by an employer wouldn’t give rise to a PCP.
By Zahid Reza
Case report: United First Partners Research v Carreras 
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Ms Donelian started working for Liberata UK Limited in 1999, from 2004 she worked as a Court Officer. From around September 2008, Ms Donelian started to arrive at work late, leave early or take days off at a time (sometimes without notice). In one year, she was absent for a total of 128 days. She gave numerous reasons for her absence, including stomach upsets, wrist pains, head colds, stress and anxiety. To investigate Ms Donelian’s absences, Liberata did the following:
- Referred her to Occupational Health – The OH report concluded that she wasn’t disabled but it did not answer some of the questions put to the doctor;
- Obtained a more detailed report from a second doctor – This report didn’t respond properly to all of Liberata’s questions either;
- Corresponded with her GP; and
- Held return to work meetings.
In October 2009, Ms Donelian was dismissed for (1) bad attendance; (2) failing to comply with absence notification procedures; and (3) failing to work her contractual hours. Ms Donelian brought a number of claims in the Employment Tribunal (‘ET’), one of which was for a failure to make reasonable adjustments (that is, adjusting the attendance expectations).
The ET found that Ms Donelian was disabled, but dismissed the reasonable adjustments claim because Liberata didn’t know she was disabled. It was accepted that Leberata had no actual knowledge; the case turned on whether or not Liberata had constructive knowledge (that is, whether it should have found out, based on what it did know). The ET thought Liberata had done what it could reasonably be expected to do to discover any disability. Ms Donelian appealed to the Employment Appeal Tribunal, who upheld the ET’s decision. She further appealed to the Court of Appeal.
The Court of Appeal dismissed the appeal, concluding that Liberata did not have constructive knowledge of the disability. Its rationale was that an employer must have constructive knowledge of all three legal elements of a disability; which are (1) an impairment; (2) the prognosis; and (3) the effect on the employee’s ability to carry out normal day-to-day activities.
The case illustrates the importance of employers undertaking thorough investigations when looking into whether or not their employees have a disability. This will greatly assist in avoiding disability discrimination. This is because the more thorough the investigation, the better the chances are of employers both discovering and dealing appropriately with employees who have disabilities. Additionally, in the event an employer does not discover a disability, a thorough investigation can act as evidence of an employer legitimately not having constructive knowledge of the disability and thus avoiding liability for disability discrimination (like in this case).
By Zahid Reza
Image used under CC courtesy of Sherwood
The key points from the report (produced by the independent polling organisation YouGov) are as follows:
- Half of employers believe pregnancy in the workplace is an ‘unnecessary cost burden’
- 40% claim that women in their workplace ‘take advantage’ of their pregnancy
- Employers in finance were twice as likely as to hold negative views about the commitment of pregnant employees
- Research suggests that 54,000 new mothers are forced out of jobs every year because of maternity discrimination.
- The report states ‘it is clear that many employers need more support to understand the basics of discrimination law and the rights of pregnant women and new mothers’
Perhaps the most interesting finding is that six in 10 employers (59%) agree that a woman should have to disclose during the recruitment process whether she is pregnant. It also shows that there are pockets of employment law that employers don’t really understand.
The Equality Act 2010 protects employees from pregnancy discrimination within the workplace on the basis of being pregnant or maternity leave. Yet despite the last eight years of the Act being in force, employers are still discriminating against pregnant women today.
The research shows that women at job interviews are regularly asked questions about starting a family in the future. A recent survey of more than 1,000 British employers identify that six in ten believe women should have to disclose at interview whether they are pregnant and those employers revealed if those women are pregnant, they are reluctant to hire those who are.
Unbeknown to many British employers, those who ask potential applicants about their future family plans could be in breach of pregnancy discrimination provisions under the Equality Act 2010.
By Ava Bannister
Image used under CC courtesy of Randen PedersonRead More
The Charity ‘Kick It out’ has reported an increase in discrimination across English football. So far this season, 111 incidents have been reported to Kick It Out from the top four English leagues. 64 incidents were from the Premier League (compared to 40 this time last year), with 47 being from the Championship, League One and League Two (compared to 29 this time last year). Incidents of discrimination across the top four leagues has rose by 38% compared to this time last year. Across professional football, 51% of reported incidents concerned racism.
Chair of Kick it Out, Lord Ouseley said:
“Our latest statistics reveal a significant increase in incidents of discrimination in football, which should act as a wake-up call to everyone in the sport”.
Does the law protect professional footballers as employees?
In 2013, legal provisions were removed which meant that employers were no longer liable for third party discriminatory harassment against their employees.
Before 2013, an employer could be liable for third party discriminatory harassment if they failed to take reasonable steps to prevent discriminatory harassment from a third party to their employee, provided that the employer knew the employee had been harassed by a third party on at least two previous occasions (whilst in the course of employment). This means that employers are no longer expected to ban troublesome, racist, clients for fear of facing discrimination claims from staff, for example.
Where does that leave discrimination in English football? At the moment, clubs are not liable for the actions of fans (who are a third party) if they abuse their footballers in stadiums. Maybe if the pre-2013 provisions were re-introduced, the risk of liability for football clubs would ensure that all football clubs across all levels take big steps to prevent their players being discriminated against on the football pitch. This could heavily contribute to eradicating discrimination in English football.
By Zahid Reza
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Footballer David Cox (who plays for Scottish League Two side Cowdenbeath) has suffered from depression since the age of 15. Since David made the decision to speak out about his mental health issues (including that he has attempted suicide and self-harmed), he has received abuse from by players and fans.
Some of the abuse he was subjected to included fans saying “go and hang yourself and do it right this time”; and players talking about “me slitting my wrists and stuff”.
David has implied that some fans come in with the mentality that as they have paid their money, they can abuse who they want, and then go home and forget about what they have said, not thinking about how their actions have affected the individual(s) subject to their abuse (particularly if the individual suffers from mental health issues). For David, he described the effect as “it bothers me for the rest of the weekend. It gets me in a bad place again”.
David said that players often gave him abuse, just to gain a competitive advantage, then later apologised for their actions.
David’s story arguably highlights the lack of awareness in society about the seriousness mental health-related harassment, as otherwise the fans and players would not abuse and mock David for his mental health issues. There has been much focus on dealing with mental health issues in the workplace, however maybe David’s story indicates that there should still be a wider focus on educating society in general on the seriousness of mental health issues.
The law recognises that a mental impairment can meet the definition of disability (and therefore attract the protection of discrimination law). However, from a legal perspective it is notoriously difficult for depression to be recognised as a disability, and is almost impossible without medical evidence. In light of David’s story, maybe the law should have a different test for a mental disability (rather than at the moment, where one legal test captures both mental and physical disabilities) that captures most forms of mental illness, so to give more individuals suffering from mental illness the protection of discrimination law.
By Zahid Reza
Image used under CC courtesy of Martha_ChapRead More