Fitzgerald HR’s October Employment Case Law Round up – Protected Characteristics
In this month’s employment law round up, we’re looking at recent cases at tribunal, with a focus on protected characteristic discrimination claims. We’ve provided a breakdown of each case to find out what they tell us about best practice going forward, and what that means for your business.
The questions asked by the Employment Tribunals were as follows.
- Is Vegetarianism a protected characteristic under the Equality Act 2010?
- Is a shoulder massage from the Team Leader acceptable in the workplace?
- When should an assessment be made of whether an employee’s disability is long-term?
- Why is it important to provide the right reasons for a dismissal?
- Protected Conversations: When are confidential pre-termination negotiations disclosable?
Is Vegetarianism a Protected Characteristic under the Equality Act 2010?
This was the issue being determined by the Employment Tribunal (ET) in the case of Conisbee v Crossley Farms Limited. Mr Conisbee brought a case asking the ET to rule that vegetarianism was a ‘protected characteristic’ under the The Equality Act 2010. Under the Equality Act it’s unlawful to discriminate in the workplace because of religion, religious belief, philosophical belief or lack of religion or belief.
In order for a philosophical belief to qualify as a protected characteristic it must meet the definition in Clause 52 of the Equality Act and be:
- genuinely held;
- a belief, rather than an opinion or viewpoint;
- related to a weighty and substantial aspect of human life and behaviour;
- of a level of cogency, seriousness, cohesion and importance;
- worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others; and
- of a similar status or cogency to a religious belief.
What are the facts of the case?
Mr Conisbee is a vegetarian. He was employed as a waiter and barman at a pub run by Crossley Limited. He resigned after 5 months in the job and alleged that he had been discriminated against on the grounds of religion or belief contrary to the Equality Act 2010, on the basis that he was given snacks by other employees that he was later told contained meat products.
The argument put to the Tribunal was that vegetarianism deserved the same protection as other religious or philosophical beliefs. Mr Conisbee argued that vegetarianism satisfied all the above criteria, on the basis that many vegetarians (including him) hold a genuine belief that it is immoral to eat animals, and this is a “serious belief integral to their way of life”. He also argued that vegetarianism is evidently “a weighty and substantial aspect” of human life and behaviour that is clearly compatible with human dignity.
The Employer accepted that Mr Conisbee was a vegetarian and had a genuine belief in the principles of vegetarianism but argued it could not amount to a protected characteristic. It was submitted that his belief that the environment would be a better place without slaughtering animals for food was merely an opinion and a point of view.
It was argued on behalf of the Employer that the belief of vegetarianism is not about human life and behaviour, but about preserving the life of animals and fish.
Further to this, it was also pointed out that many people are vegetarian at some stage in their life but later give it up. This point was used to evidence the difficulties that employers would face if vegetarianism was held to be a protected characteristic. This would create a practical problem for employers in working out whether an employee was a vegetarian or not at the material time.
The decision of the Employment Tribunal in determining the presence of a protected characteristic
The Employment Tribunal found that, although the belief in vegetarianism was genuinely held and worthy of respect in a democratic society, it was not persuaded that vegetarianism amounted to a philosophical belief that was deserving of protection because of the following.
- It did not concern a weighty and substantial aspect of human life and behaviour, because it was a lifestyle choice and belief that the world would be a better place if animals were not killed for food.
- It did not attain the required level of cogency, seriousness, cohesion and importance, because reasons for being vegetarian differ greatly from person to person.
Interestingly though, the Tribunal suggested that veganism was likely to be a protected belief as it specifically related to the way animals were reared and encompassed environmental concern as well as animal welfare. Many may think that there are significant features in common between the two beliefs and this area is a developing and complex one.
Vegetarianism is not protected under the Equality Act 2010. Veganism however…
In conclusion, the Employment Tribunal found that vegetarianism does not amount to a philosophical belief capable of protection under the Equality Act 2010. Whether veganism would be classed as a philosophical belief under the Equality Act 2010 however is currently being explored in the case of Casamitjana v League Against Cruel Sports.
So what does this mean for employers?
As employers, we should be aware that philosophical beliefs are protected under the Equality Act 2010 and require respect at work. Employers should have clear bullying and harassment policies in place, which outlines acceptable behaviour and conduct.
If you need support with drafting policies or handling a bullying and harassment investigation, our team of HR consultants are experienced in these areas and can support with workplace investigations.
Read more: Four ways to combat workplace bullying and harassment.
Is a shoulder massage from the Team Leader acceptable in the workplace?
The case of Raj v Capita Business Services Limited raises interesting questions about unlawful harassment in the workplace.
Section 26 of The Equality Act 2010 defines unlawful harassment as “unwanted conduct” which is related to a protected characteristic (such as sex or gender) and which has the purpose or effect of violating someone’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
Mr Raj was employed for less than a year as a Customer Service Agent processing ophthalmic forms. His employment was terminated for poor performance during the probationary period. He alleged that on several occasions when he was sitting at his desk, a female Team Leader had stood behind him and given him a massage, feeling his shoulders, neck and back.
He said that this was unwanted conduct either of a sexual nature or unwanted conduct relating to his sex, both within the meaning of section 26 of the Equality Act 2010.
What are the facts of the case?
Mr Raj failed in a claim for sexual harassment/harassment relating to sex before the Employment Tribunal. The ET found that, although he had been the subject of unwanted physical touching by a team leader (in this case receiving shoulder and neck massages), the conduct was not sexual or related to Mr Raj’s sex.
The Employer argued that the level of contact described by Mr Raj hadn’t occurred, stating that he had been tapped on the shoulder on one occasion. The ET however found that that the behaviour complained of by Mr Raj had in fact taken place.
The Employer said that the behaviour was designed to encourage the Claimant and improve his performance and was not to do with the Claimant’s sex.
The Tribunal asked itself if the facts enabled it to conclude that the unwanted conduct related to the Claimant’s sex. It decided that the facts did not prove this.
Mr Raj appealed. The EAT found that, on the balance of the evidence, the behaviour was designed to encourage Mr Raj. The EAT rejected the submission that the massaging on the shoulders was conduct of a sexual nature stating:
“…We consider that the context and behaviour we have found (open plan office, said in a jokey way, accompanied by “well done” or praise” and so on) are not consistent with sexual behaviour, and we reject this characterisation of the conduct. We have rejected the elaboration of the conduct as running hands up and down the Claimant’s back, which could be sexual conduct on any view, but consider the contact was limited in the way we describe it. For these reasons, on the balance of the evidence, we have concluded that two or three occasions of massage type contact with the Claimant’s shoulders was not conduct of a sexual nature.”
The ET’s assessment was that the conduct was unwise and uncomfortable for Mr Raj and did create a hostile environment. But they were satisfied that it was not sexual or related to his gender and so he was not discriminated against.
The EAT held that the ET had correctly identified what it saw as the evidential difficulties with concluding that the threshold had been reached of showing a prima facie case that the unwanted conduct was related to the Claimant’s sex, and so the burden of proof did not shift to the Respondents.
In any event, even if the burden of proof had shifted, the ET had accepted a non-discriminatory reason for the massages – to encourage performance.
What can we learn from this?
Employers are recommends to have clear policies on physical touching in the workplace in order to minimise the opportunities for misunderstanding or offence.
When should an assessment be made of whether an employee’s disability is long-term?
Case: Parnaby Vs Leicester City Council EAT
This case is about the timing of an assessment of whether an Employee’s disability is long term. An employee is disabled, under s.6 of the Equality Act 2010, if they have a mental or physical impairment and that impairment has a substantial and long term adverse effect on their ability to carry out normal day to day activities.
An impairment is likely to be viewed as ‘long-term’ if
- it has lasted for at least 12 months,
- is likely to last for at least 12 months or,
- it is likely to last for the rest of the person’s life.
If the impairment ceases to have a substantial adverse effect at any point, it will be treated as continuing to have the effect if it is likely to recur.
What are the facts of this case?
Mr Parnaby worked as a Caretaker for the Council since 2010. He was dismissed because of his long-term sickness absence due to work-related stress. He had suffered two separate episodes of work related stress and had been prescribed anti-depressants by his GP.
He claimed that his dismissal amounted to discrimination on the basis of disability, and that it was unfair. In his Employment Tribunal claim he described his disability as work-related stress. The ET concluded, in relation to the two periods of illness, that his impairment was not long-term (as set out in Schedule 2 paragraph 1 Equality Act 2010) and he did not meet the definition of being a disabled person.
The Tribunal decided that there was a clear break between his two periods of absence from work. At the time of his dismissal, the impairment had not lasted for twelve months. The Tribunal therefore found that the adverse effect of his condition was not long-term.
In particular, the Tribunal held that the second period of absence was a reaction to workplace difficulties which did not affect him when he was not at work. It was accepted that his impairment had a substantial affect on his ability to carry out normal day to day activities, but it was not long-term because his work-related stress would not continue after his dismissal.
Mr Parnaby appealed this decision on two grounds. Firstly, that the ET had erred in focusing only on whether the second period of illness had lasted 12 months rather than whether at the date of dismissal, the effects of the impairment were likely to last at least 12 months, or to recur.
Secondly, he argued that the ET erred in taking into account the fact that, because the cause of the Claimant’s stress was removed (that is, his work for the Respondent), his impairment was not likely to last at least 12 months or to recur.
The EAT agreed, and found that the ET had erred in considering that the likely duration of the effects of the Claimant’s impairment was limited by his dismissal.
The EAT upheld Mr Parnaby’s appeal and remitted the case for re-hearing. It found that the Employment Tribunal had failed to consider the likelihood that the impairment was likely to last for 12 months (or likely to recur) at the time the relevant decision on dismissal was being taken.
As the dismissal had come after many of the acts Mr Parnaby had complained of, the dismissal itself should not have been considered. The Employment Tribunal should not have assumed that the dismissal would mean the effects of the disability ended.
Disability should be assessed at the time of the alleged discriminatory act
This case highlights that the assessment of long term disability should be made at the time of the alleged discriminatory act.
The question is whether the impairment is ‘likely’ to last for twelve months (or ‘likely’ to recur) at the time the discriminatory acts occur.
The Tribunal should not have looked in hindsight at what had actually happened but should have considered the position as it was at the time in determining the likely effect.
What does this tell us about protected characteristics such as disability?
It can be difficult for us to determine if an employee’s impairment would be considered a ‘long term’ disability. You’re advised to seek medical advice and ask specific questions to occupational health professionals to gain information on the duration of impact an impairment may have. This allows us to manage risk when managing long term sickness absence.
Read more: How to manage capability when an employee is dishonest
Why is it important to provide the right reasons for a dismissal?
Case: Base Childrenswear Ltd vs Nadia Otshudi
This case is a beneficial lesson for employers in ensuring that the correct procedures are followed and that a proper investigation take place when misconduct is suspected.
A significant financial award of compensation was made in this case as the Employer could not establish a non-discriminatory reason for dismissal.
What are the facts of the case?
Ms Otshudi was employed as a photographer, taking pictures of clothes for use on social media and in other sales materials for a clothing business. She had been employed for only three months before her dismissal, but the quality of her work was regarded as high.
In May 2016 the she was called to the office of the Managing Director. She was told that she was being dismissed due to redundancy. This came as a surprise to her and she stated she did not believe this was the true reason for her dismissal. She alleged a racial motive. The Employer reacted indignantly and she left.
Ms Otshudi believed that she was the victim of discrimination by others in the team that she worked with and that was the real reason why she was being dismissed.
Five days later, she lodged a grievance complaining that her dismissal was discriminatory, and complaining of racist treatment by colleagues. Her Employer didn’t respond to the grievance. She then commenced ACAS Early Conciliation which the Employer also failed to engage with.
Ms Otshudi brought ET proceedings claiming her dismissal was “both unfair and a discriminatory act”. The Employer’s initial defence was that she was made redundant “purely for financial/economic reasons”, and stated there was no racial motivation.
However, the Employer changed tack during the proceedings claiming that the true reason for dismissal was suspected theft of clothing, (she had not been notified of the allegation, there had been no investigation and little evidence). The Employer said they had given a seemingly less controversial reason of redundancy in order to avoid a confrontation with her.
The ET dismissed the claims of racial discrimination from colleagues as being brought out of time but upheld the claim of race discrimination in relation to the dismissal. They found that the Employer’s account lacked credibility. As Ms Otshudi had established a prima facie case, the burden of proof was on the Employer to disprove the claim. However, the Employer had failed to offer a non-discriminatory explanation for her dismissal.
The tribunal found that Miss Otshudi’s injury to feelings should be considered within the middle-Vento band and made an award of £16,000. Aggravated damages of £,5000 were also awarded for:
- the Employer’s failure to respond to the grievance/appeal;
- its subsequent conduct of the employment tribunal litigation relating to the lie told to her about the reason for dismissal; and
- its subsequent late changing of the grounds of defending the Claim.
The tribunal then went on to make an uplift of 25% in respect of the breach of the ACAS Code given the Employer’s failure to respond to the grievance/appeal.
The Employer appealed on the following grounds.
- The ET should have placed the injury to feelings award in a lower Vento band as this was a single incident.
- No account had been taken of the overlap between awards for non-pecuniary losses.
- Sums awarded for injury to feelings and aggravated damages included compensation for matters compensated by the ACAS uplift, such that the combined awards made under those heads contained an element of double – or even treble-counting.
- The total award for non-pecuniary losses was manifestly excessive.
- And the ET had taken into account matters that were irrelevant.
The appeal to the EAT against the liability decision was dismissed. The EAT held that the appeal failed on each ground, except that the award for aggravated damages would be reduced by £1,000, as the ET had considered the Employer’s failure to respond to the Claimant’s grievance under the head of aggravated damages and also as justifying an ACAS uplift, so there was an element of double counting.
The Employer appealed to the Court of Appeal on the grounds that there was no evidential basis for the ET’s finding that the Claimant had proved a prima facie case that her dismissal was influenced by her race. They alos argued that, even if the ET had been entitled to find a prima facie case, its decision that the Employer had not proved its case under s. 136(3) Equality Act 2010 was flawed.
The Court of Appeal found there had been no error of law on the part of the ET. It stated that the consequence of the way that s 136 Equality Act 2010 works is that, if an Employer fails to show that the relevant protected characteristic played no part in its motivation for doing the act complained of, a tribunal is not obliged to make a positive finding as to whether or how it did so.
The burden of proof is on the Employer to evidence legitimate and non-discriminatory reasons for dismissal.
The Employer should have carried out a proper investigation if it had grounds to suspect dishonesty.
Providing a false reason and not engaging with the employee or responding to her grievance left it open for the Tribunal to find that the reason for dismissal was discriminatory against the protected characteristic of race. This resulted in a significant award for the employee.
What does this tell us about how we approach best practice as employers?
Following the correct procedures and carrying out thorough investigations in line with the ACAS codes of practice are worthwhile and protective measures to ensure that we can defend disciplinary action against discrimination claims.
Hearing grievances when they are raised, and in the correct manner, provides employers an opportunity to resolve any issues, and reassure employees that their concerns will be heard. This could help avoid employees feeling the need to progress to tribunal over disputes.
Engaging with employees at early conciliation stage is another opportunity for employers to resolve disputes with employees, and avoid significant costs at tribunal if unable to defend claims.
If you’re dealing with a case you’d like our support with, our team of consultants are experienced in employee relations cases, and can provide advice and guidance on procedures and investigations.
When are protected conversations disclosable?
Case: Harrison vs Aryman Ltd EAT
This is an important case on the scope of confidential negotiations or ‘protected conversations’ between employer and employee before the termination of employment and s. 111A of the Employment Rights Act 1986 (ERA).
This section provides that evidence of pre-termination negotiations with a view to agreeing exit terms or settling a dispute are inadmissible in proceedings unless there is an unfair dismissal or there has been improper behaviour. This case looks at exceptions to the general inadmissibility rule.
What are the facts of the case?
Ms Harrison had been employed as a master craftsperson between 2002 and 2017. Her Employer had written a letter in 2016 suggesting the termination of her employment based on a settlement agreement.
Ms Harrison argued that the letter was sent as a consequence of her informing the employer that she was pregnant. She asserted that the Employer had a history of discriminatory behaviour toward pregnant women and that the letter was the direct cause of her resignation. She brought a claim for constructive dismissal and that she had been discriminated against on the basis of pregnancy or maternity and sex.
Her claim referred specifically to the letter which was headed ‘confidential settlement proposal’, and included an offer to terminate her employment under a settlement agreement. The employer argued that Ms Harrison could not rely on the letter because it was a protected conversation under s111A. At a preliminary hearing, the Employment Tribunal agreed. Ms Harrison appealed.
The Employment Appeal Tribunal (EAT) confirmed that where an employee claims that the reason for dismissal was automatically unfair (such as a pregnancy), then the details of a protected conversation are not protected and can be used in evidence without the tribunal having to make a finding of fact beforehand. The Claim should be properly pleaded to set out why the exception applies.
However, where an employee wants to use details of a protected conversation as evidence because of ‘improper conduct’, then the tribunal will have to make a finding as to whether there was improper conduct (which the tribunal failed to do in this case) before considering whether to apply the exception.
The Acas Code of Practice – Settlement Agreements provides a helpful but non-exhaustive list of examples of improper conduct.
The EAT found that the Tribunal had not considered whether the exceptions to inadmissibility applied. Ms Harrison was clearly suggesting that she had been unfairly dismissed due to pregnancy and complained of other improper conduct by the Employer.
The EAT held that it was incumbent on the ET to proactively seek clarification as to what the precise live issues were in relation to section s111A ERA that were to be decided. Accordingly, the matter is to be remitted to the ET for fresh consideration of the s.111A issues.
Unfair dismissal, or improper behaviour may mean protected conversations can be disclosed in proceedings
Employers should take care when carrying out protected conversations and ensure that offers are made carefully considering the provisions of section 111A. Protected conversations are a useful tool when used correctly but Employers should be mindful of the circumstances in which a confidential document and conversation can be admitted into proceedings.
What could the employer have done to avoid this?
Employers are advised to take care when entering into a protected conversation to discuss termination if the employee has a protected characteristic.
Protected characteristics at tribunal
To sum up, this month’s employment law round up emphasises the importance of following correct procedures and investigations in order to resolve employee issues whilst minimising your risk.
Where protected characteristics add more risk to employee matters, following procedures and working in line with the ACAS codes of practice can protect employers from significant costs at tribunal.
If we can help with any of your HR requirements, contact our team of experienced HR professionals at office@fitzgeraldhr.co.uk or on 0330 223 5253.
Further resources:
Fitzgerald HR’s Employee Relations Service
Managing Employee Absence
The Equality Act
