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Is veganism protected by discrimination laws?

For the first time, an employment tribunal will decide whether veganism is a ‘philosophical belief’. That will decide whether or not it can be protected under by the discrimination laws (the Equality Act 2010) for the purposes of discrimination, like a religious belief.

Jordi Casamitjana (a vegan) claims that the League Against Cruel Sports dismissed him because he raised concerns that they invested their pension fund in companies that do animal testing.

Jordi has lodged a claim for discrimination citing the ‘philosophical belief’ (which he defines as not eating, wearing or consuming any animal products) in ethical veganism. His employer has refuted these allegations, stating that Jordi’s dismissal was for gross misconduct.

The tribunal has called a hearing in March 2019, to determine whether veganism is a philosophical belief.

What is a philosophical belief?

There is no specific definition of philosophical belief in the discrimination laws. However, caselaw has given guidance, which includes:
1. The belief must be genuinely held.
2. It must be a belief rather than a mere opinion.
3. It must be a fairly serious belief (about an aspect of human life and behaviour).
4. It must be worthy of respect and not conflict with human dignity, nor the fundamental rights of others.
5. It must “have a similar status or cogency to a religious belief”.
6. It need not be shared by others.
7. It may be based on science.

In our view, the crux is whether Jordi’s veganism beliefs have similar status to that of religious beliefs. Some believe that it wont’ this standard because it is likely to be interpreted as a ‘lifestyle/dietary’ belief, rather than a belief which touches all aspects of life, like religions tend to be.

Our view is that Jordi’s veganism belief in ‘not eating, wearing or consuming any animal products’ is capable of being categorised as a belief rather than an opinion or viewpoint. As ‘ethical vegans’ eat a plant-based diet because of beliefs about how humans should treat animals it is likely, in our view, that this part of his case will succeed.

It will be fascinating to see what the tribunal’s decision is in March 2019, as if veganism is classified as a philosophical belief then it could open the floodgates to many different ways of thinking being protected under the Equality Act 2010. Examples found by the tribunals already have included beliefs on climate change.

Laws tend to take on a life of their own once they leave parliament. In bringing in these laws, the government said that it did not share the view that climate change or veganism were covered by the legislation. But the courts have said otherwise about views on climate change, fox hunting and even the “higher purpose” of public service broadcasting.

By Zahid Reza

Image used under CC courtesy of  veganmotivation.com

Ken’s dismissal after 35 years

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 Ken’s gross misconduct dismissal from a national supermarket after 35 years of service.

Ken was the Store Manager. One aspect of his duties was overseeing the processing of stock, and more particularly the recording of stock that couldn’t be sold at full price (‘disposals’). Ken would review disposals made by his team, and where possible re-code the items to remove them from the disposal category. This was what he had been trained to do.

Ken’s employer accused him of wrongly re-coding stock that could be sold, as stock that couldn’t be sold, losing the store money and giving it inaccurate figures. They claimed he was doing this to improve his KPIs and therefore his bonus. He was suspended, and an investigation was carried out. Ken received a letter inviting him to a disciplinary hearing, only now he was accused of losing, whether directly or indirectly (via his staff) £20,000. Ken was dismissed, but on appeal this was replaced with a final written warning and a demotion. Ken rejected the demotion and resigned with notice.

We found that Ken’s employer failed to get to grips with the issues; they didn’t investigate his claim that he had followed training to the letter and so the employer failed to get the decision right. They ignored the fact that his bonus didn’t depend on these KPIs. And they failed to understand that if he miscategorised stock, it made one statistic go higher but the other one go lower, a neutral net effect.

We helped Ken bring a claim of unfair dismissal in the Employment Tribunal on the basis that the employer behaved unfairly both in terms of their disciplinary procedure and the severity of the sanction – a gross misconduct dismissal that would be on his record.

He got a job at another supermarket, where he is happy, but at half his previous salary and his losses would be over £150k over a couple of years.

We had a strong hunch that the employer would not want to put this gross misconduct dismissal case before a judge and advised him to hold out to the bitter end and go to a tribunal hearing if necessary. Just before the final hearing, after some heavy negotiation, Ken received an offer near to the maximum that the law allows.

By Zahid Reza

Image used under CC courtesy of Polycart.

Third of women harassed at work

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:

1. Extra training for all staff; and
2. Creating a policy making it clear that sexual harassment will not be tolerated and appointing specific individuals to complain to; and
3. 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

Constructive dismissal: how to resign properly

Constructive dismissal is when an employee resigns in response to a major breach of contract by the employer; there has been a recent caselaw development which informs the decision how to resign. See this page for more on this topic.

One of the elements an employee must show for a successful claim is that they resigned promptly after the breach, otherwise an Employment  Tribunal (ET) may conclude that the they ‘affirmed’ (accepted) the breach of contract and so could not have resigned ‘in response’ to it.

Commonly the employee complains that the employer has breached the implied term of mutual trust and confidence. This is conduct showing that the employer intended no longer to be bound by the employer/employee relationship. An employee who asks an employment solicitor how to resign will be told they can use either (1) one major breach; or (2) a series of events ending with a ‘’last straw’ (which does not need to be significant).

Often, the employee lets a number of events slide, before claiming that the last one has broken the camel’s back and that the weight of the straw as a whole has broken the camel’s back. The question is how this fits with the idea that once a breach has been ‘affirmed’, does that take it off the camel’s back so that the employee can’t rely on it?

A recent EAT case looked at this question.

Facts

Mrs Mackenzie started working for Pets at Home  in 2007 as an Assistant Manager. In 2014, she told Pets at Home that she was pregnant. Shortly afterwards she applied for promotion, and after an assessment, she failed in her application. In January 2016 whilst on maternity leave, the promotion opportunity became available again, and she applied for the role but again failed to clinch it after undergoing an assessment. She let this go (‘affirming’ the breach). In March 2016, Ms MacKenzie found that a less experienced Assistant Manager (whom she had previously managed) had got the position. She found this to be the ‘last straw’ and resigned in response.

The Employment Tribunal (‘ET’) accepted Ms MacKenzie finding out a lesser experienced colleague was promoted as the ‘last straw’ and found the failure to promote her on both occasions was discriminatory and amounted to Pets breaching the implied term of mutual trust and confidence.

Pets at Home appealed to the Employment Appeal Tribunal (‘EAT’).

Decision

The EAT found for Pets at Home. It thought that the ET had failed to consider whether the two acts of discrimination had been affirmed or not. It found that the first failure to promote was affirmed (over a year before reisignation) and the second one too (three months previously).  In this context, resigning ‘promptly’ means within a week or two.

The EAT concluded that a ‘last straw’ could not revive an earlier breach of contract that had already been affirmed.

Analysis

The position is that letting a breach of contract slide is affirmation. After that point you can’t rely on it to resign on a stand-alone basis. But in the employment context, a number of minor events and breaches of contract can be ‘revived’ (brought in play for the last straw principle by being put back on the camel’s back) in a number of circumstances, for example if ‘letting it slide’ was conditional, or if they can be seen as part of a ‘course of conduct’.

The EAT has clarified that if an employee does not complain about a breach of contract by the employer, they lose the right to resign and bring a constructive unfair dismissal claim. Those wanting to know when and how to resign should use it or lose it, as they say.

Case report: Pets at Home Ltd v MacKenzie

By Zahid Reza

EAT: Bumping not a ‘compulsory’ consideration in a redundancy situation

Redundancy can be a necessary, but never a positive process for any business, and can create much uncertainty and stress to those at risk of redundancy. It is because of the negative impact redundancy can have on employees, that the law requires employers to (1) consult affected employees; (2) look for alternatives to redundancy; and (3) adopt a fair process for selecting the employees who are to be made redundant.

‘Bumping’ is a procedure where an employee who is at risk of redundancy (employee A), is moved to another position within the business, with the current occupier of that position being dismissed instead (employee B).

The Employment Appeal Tribunal (EAT) in the case of Mirab v Mentor Graphics (UK) Ltd considered the extent to which employers must consider bumping as an alternative to redundancy.

Facts

The claimant, Dr Mirab worked as a Director of Sales for the respondent, Mentor Graphics (UK) Ltd (Mentor), starting in 2013. Dr Mirab was successful in his role, but Mentor’s sales in the Embedded Systems Division were lower than forecast in 2013 and 2014. On 1 February 2015 Mentor restructured the sales force, the effect of which was Dr Mirab no longer earned commission from the automotive sector (Mentor’s most successful sector at the time). Dr Mirab communicated his unhappiness to Mentor, but ultimately continued to work with Mentor. In November 2015, Mentor concluded that Dr Mirab’s position was no longer needed.

On 3 February 2016, Dr Mirab was informed he was at risk of redundancy. During subsequent consultation discussions, Dr Mirab accused Mentor of engineering the redundancy situation. Mentor gave Dr Mirab access to an internal website showing all their vacancies (around 10 in the UK, 275 worldwide). Dr Mirab found nothing suitable. On 29 February 2016, Mentor concluded they hadn’t been able to avoid Dr Mirab’s redundancy and said his notice of termination would start that day. Mentor sent Dr Mirab a letter outlining the reason(s) for redundancy, and advised he had a right of appeal. Dr Mirab appealed but it was rejected.

Dr Mirab went to the Employment Tribunal (ET), claiming that he was unfairly dismissed. The ET found that Dr Mirab was not unfairly dismissed, but curiously mentioned the following about the consideration of bumping when looking at alternatives to redundancy:

“It might have been possible for the respondent in the UK to consider within the wider company the possibility of “bumping”…but the claimant [Dr Mirab] himself did not suggest it…if the claimant himself had suggested it, the respondent would have been bound to consider that suggestion.”

Dr Mirab appealed to the EAT.

Decision

The EAT disagreed with the ET’s approach when considering bumping. The EAT clarified that there is no strict rule stating an employer must consider bumping in a redundancy situation, but that equally there is no rule that an employer does not need to consider bumping unless the employee raises it. The EAT confirmed that the key question is whether the decision to dismiss by reason of redundancy falls within the reasonable band of responses.

Analysis

The EAT’s decision reinforces bumping off as a possibility that should be considered if relevant when looking at alternatives to redundancy. However, the overriding consideration should always be that of whether the decision to dismiss those selected to be redundant is reasonable. This is key to avoiding an unfair dismissal claim from a former employee.

By Zahid Reza

Case report: Mirab v Mentor Graphics (UK) Ltd

Image used under CC courtesy of nikoretro

Who pays for Christmas party gross misconduct?

Many employers are rewarding their staff by hosting a Christmas party, but gross misconduct is a risk.

Whilst this is no doubt a time for staff bonding, laughing and joking (often whilst  recollecting the humorous stories at work this year), let’s rewind 12 months to a case in late 2016.

This case illustrates that whilst a Christmas party is an event where everyone lets their hair down, employers should be mindful that this is a work-related event and as such, they can be held responsible for the actions of their staff if things kick off (also known as vicarious liability).

The key question for vicarious liability is whether the offender was acting in their personal capacity, or in the course of their employment.

Bellman was about a Christmas party hosted by Northampton Recruitment for their staff and guests. The party which was at a Golf Club, proved uneventful. But after the party, a number of guests travelled to a local hotel, where the party continued. At this after-party, the MD assaulted a member of staff (leaving him with brain damage) because he felt his authority was being challenged at work.

The High Court found that Northampton was not vicariously liable for the assault. The judge described the after-party as not a company event and so Mr Major’s conduct was not in the course of his employment. The judge’s reasoning was that the after-party was ‘an entirely independent, voluntary and discreet early hours drinking session of a very different nature to the Christmas party and unconnected with the or employer’s business’.

This decision shows that if the incident had taken place at the Christmas party, then the employer would have been responsible for gross misconduct that resulted.

Conclusion

All employers should be wary of Christmas party gross misconduct. Employers should take all reasonable steps to ensure misconduct (especially gross misconduct) does not occur, such as:

1. Ensuring their equal opportunities policy is up to date; and
2. Providing training to staff (e.g. on anti-discriminatory practices, and on bullying and harassment).

Such measures would reduce the likelihood of an employer being held vicariously liable for the gross misconduct of their staff.

Case report: Bellman v Northampton Recruitment Ltd

by Zahid Reza

Image used under CC courtesy of Bill Tyne