How does a tribunal decide whether a person’s view on something amounts to a ‘belief’ which is protected from discrimination?
Religion or belief is one of nine protected characteristics covered by the Equality Act 2010. This means that those who hold a protected religion or belief have a right not to be discriminated against, suffer harassment or be victimised on grounds of that religion or belief. ‘Religion’ means any religion, including a lack of religion. ‘Belief’ means any religious or philosophical belief (or lack of belief).
There have been several recent cases which have looked closely at the idea of a ‘philosophical belief’ and what is needed for a belief to qualify as ‘philosophical’. In the case of Grainger plc v Nicholson five criteria were identified which must be satisfied for a belief to be protected. These five criteria are mirrored in the Equality and Human Rights Commission Code of Practice 2011. These are that:
- The belief must be genuinely held.
- The belief must not simply be an opinion or viewpoint based on the present state of information available.
- The belief must concern a weighty and substantial aspect of human life and behaviour.
- The belief must attain a certain level of cogency, seriousness, cohesion and importance.
- The belief must be worthy of respect in a democratic society, not be incompatible with human dignity and not be in conflict with the fundamental rights of others.
Applying this test, the following are examples of beliefs which have been held by to be philosophical beliefs:
- Climate change
- Anti Zionist views
- Gender critical views
- The higher purpose of public service broadcasting
- Anti Fox-hunting
The wide remit of ‘philosophical belief’ means that employers should take care when employees have strong views. They should treat them with respect unless, as the test states, they are not ‘worthy of respect in a democratic society’ or are ‘incompatible with human dignity and …. in conflict with the fundamental rights of others’. This is a narrow exception.
In Forstater v CGD, the Employment Appeal Tribunal held that beliefs would only be unworthy of respect in a democratic society if they “would be an affront to Convention principles in a manner akin to that of pursuing totalitarianism, or advocating Nazism, or espousing violence and hatred in the gravest of forms”. Beliefs which are offensive, shocking or even disturbing to others, including those the expression of which could amount to the less serious category of hate speech can still be protected.
The importance of being sensitive when employees return to work following sickness
A recent Employment Tribunal case illustrates the dangers employers face if they don’t act sensitively when employees return to work following illness. In Thomas v T&R Direct Insurance, the Claimant had worked for the Respondent for several years. She took a period of time off work due to mental health issues. On her return her bosses spoke insensitively about her issues and made repeated comments about her eating habits – saying she would be ‘the size of a house’ if she carried on eating the way she was doing. She resigned and claimed constructive unfair dismissal and disability discrimination.
The tribunal concluded that, once she had been off with mental health problems, the Respondent had a change in attitude towards her that was mainly because she had taken time off work as a result of her disability and as a result was seen by them as a less reliable and valuable member of staff. The tribunal found that she had been constructively dismissed and had suffered discrimination arising from a disability and disability-related harassment. A remedy hearing is awaited.
Where employees take time away from work owing to conditions which may amount to a disability then it is of key importance that the employer is supportive on their return to work. Whilst it is obviously frustrating when a workplace is disrupted by employee absence, taking this frustration out on the employee is never the answer and is likely to lead, as it did in this case, to an adverse result in any flowing litigation.
New Paternity Leave Regulations published
After announcing proposals to make changes to paternity leave rights in summer 2023, the government have now published draft legislation in the form of the Paternity Leave (Amendment) Regulations 2024. The Regulations make the following changes:
- Employees will be able to take their two-week paternity leave entitlement as two separate blocks of one week (rather than having to take just one week in total or two consecutive weeks).
- Employees will be able to take paternity leave at any time in the 52 weeks after birth (rather than having to take leave in the 56 days following birth).
- Employees will only need to give 28 days’ notice of their intention to take paternity leave (reduced from the previous position that required notice to be given 15 weeks before the Expected Week of Childbirth (EWC)).
The Regulations are stated to apply in all cases where the EWC is on or after 6th April 2024. These proposed changes are therefore due to take effect at the same time as other family-friendly legal changes including the introduction of carer’s leave, changes to flexible working rights and the extension of redundancy protection to include pregnancy and a period of time following maternity, adoption and shared parental leave.
Employers should update their policies in advance of these changes and inform managers so that requests are handled in accordance with the new rules.
The importance of considering the surrounding circumstances before creating a pool of one in redundancy situations
A redundancy situation can occur where there is a reduced requirement for employees to carry-out work of a particular kind. Where there are a group of employees carrying out the work in question then the group would usually be pooled together by the employer with a selection process being carried-out, to work out which of those in the pool are selected for redundancy.
It is important that businesses who are facing potential redundancies turn their attention early to the question of the appropriate ‘pool’ from which they will be selecting. Even where the claimant’s job appears to be uniquely at risk, employers should be cautious before proceeding directly to conclude that it would automatically be fair to place them alone in a pool of one.
If the fairness of any resulting dismissal is challenged, the tribunal will look at whether the employer has considered the most appropriate pool for selection. If it has done so and can produce evidence that it has, then a tribunal is unlikely to look behind the business decision reached (unless it is obviously unfair or incorrect). However, if an employer isn’t able to point to documentation supporting the decision they have reached in terms of the most appropriate pool, then they will be leaving themselves vulnerable to a potential claim of unfair dismissal. The principle is discussed in the following cases:
- In Wrexham Golf Club v Ingham, the Employment Appeal Tribunal said – “the tribunal needed to stop and ask: given the nature of the job… was it reasonable for the respondent not to consider developing a wider pool of employees?”.
- In Mogane v Bradford Teaching Hospitals, the Employment Appeal Tribunal stressed the importance of consulting with the affected employee about the proposed pool for selection prior to moving forward with the redundancy process. In this case, a nurse was placed in a pool of one for selection even though she had a colleague who carried out similar work. The reason given by the Respondent was because her contract had a shorter length of time to run than that of her colleague. She was not consulted about this decision and could not challenge it.
- In Teixeira v Zaika Restaurant, the EAT stated “where a pool of one is chosen … it could be used to get rid of an unwanted employee. Accordingly, there is good reason to examine a decision to choose a pool of one employee with worldly-wise care”.
- In Blackdown Hill Mgt v Tuchkova, the tribunal found a Claimant’s dismissal to have been unfair partly owing to a failure to conduct an evaluation and selection exercise. The tribunal was not saying that it would necessarily have been wrong for the Respondent to have arrived at a pool of one, but that the unfairness lay in that question not having been considered or adequately considered.
Victimisation claims cannot succeed if the underlying allegation of discrimination is false and made in bad faith
In the recent case of Toure v Ken Wilkins Print, the Claimant was employed as a forklift truck driver. He raised a grievance alleging that he had been subjected to a racial slur by a colleague. His grievance was not upheld. He appealed against this finding but offered to drop his appeal if he was promoted and given a salary increase. He later dropped his appeal (having not received the promotion or salary increase) at which point the Respondent dismissed him for, amongst other things, his attempted blackmail.
The Claimant claimed that he had done a protected act by raising allegations of racial harassment and that his dismissal was an act of victimisation. The employment tribunal dismissed his claim, finding that the initial allegations were fictitious and that no act which could amount to victimisation had occurred following them. This was an obvious error – the Claimant’s dismissal could, in principle, be an act of victimisation. The Employment Appeal Tribunal acknowledged that the tribunal had been wrong but nevertheless dismissed the Claimant’s appeal. The tribunal had concluded that the Claimant’s allegation of racial harassment was ‘fictitious’. The EAT held that it could be taken from this that the tribunal would also have concluded that it was false and made in bad faith such that it could not form a protected act.
This case is a reminder that an employee cannot claim victimisation if they knew that their original allegation of discrimination was false.
Comparators in discrimination claims: employers should not withhold information about comparator characteristics
Claimants in race discrimination claims can face difficulties when they believe that they have been treated less favourably, have an actual comparator in mind but do not know the race of that comparator. In a recent Employment Appeal Tribunal decision, it was held that the Claimant should not delay in bringing their claim whilst trying to discover the race of their comparator.
In the case of Jones v Secretary of State for Health and Social Care, the Claimant employee, who was of African-Caribbean descent, applied for a promotion. He was unsuccessful. The successful applicant accepted the role on 2 April 2019. The Claimant did not find out he hadn’t got the job until 3 July 2019. He asked for details of the successful candidate but this was not provided by the Respondent. The Claimant issued a claim for race discrimination on 29 October 2019.
The tribunal held that the Claimant’s claim was out of time. The primary time limit ran from 2 April 2019 and it was not just and equitable to extend time. The EAT agreed. The EAT was only able to overturn the tribunal’s conclusion that it was not just and equitable to extend time if it was perverse. The tribunal had correctly weighed the issues the Claimant had in discovering the race of the successful candidate and the prejudice to the Respondent caused by the delay.
The EAT did, however, criticise the respondent for not disclosing the race of the successful candidate until after the submission of its tribunal response. The EAT reflected that failure to provide such basic information might, in appropriate circumstances, lead to an inference of discrimination.
This case shows that respondents should not hold back information about potential comparators. If they do so they risk an inference being drawn that they have swept the information under the carpet – leading to an inference of discrimination.
Barrister claiming £3 million in a belief discrimination claim has his claim dismissed for being out of time after issuing five months late
In claims for discrimination, it is a legal requirement that a claim is issued (or ACAS Early Conciliation commenced) within three months of the act complained of. This time limit can only be extended in discrimination cases if the tribunal deems, on the facts, that it would be “just and equitable to do so”. In the recent case of Holbrook v Cosgrove and others, the Employment Appeal Tribunal emphasised the importance of claims being issued in a timely manner.
In this case, the Claimant was a barrister who was expelled from his Chambers after expressing socially conservative views on twitter. His expulsion occurred on 1 February 2021. The primary time limit for any belief discrimination claim was, therefore (subject to any extension for ACAS Early Conciliation), 30 April 2021. The Claimant did not submit his claim for belief discrimination until 30 September 2021, five months out of time.
The Claimant made an application for an extension of time, claiming that he had only realised that his socially conservative views may form a protected belief under Equality Act 2010 when the EAT handed down its judgment in June 2021 in the case of Forstater v CGD Europe Ltd (which had held that gender critical views could be a protected belief). Unfortunately, the Claimant didn’t read the EAT’s judgment in Forstater for several weeks and then took legal advice on it before issuing his own claim. He also said he was preoccupied with separate bar standards board (BSB) proceedings at the time. The Employment tribunal held it would not be just and equitable to extend time. The Employment Appeal Tribunal agreed, making the following points:
- The EAT’s decision in Forstater, far from being a ‘game-changer’, did no more than restate long-established principles relating to freedom of speech and apply them to the specific context of the gender-critical views relied upon in that case.
- The same Grainger v Nicholson test regarding whether a belief is a protected belief under Equality Act 2010 applied to the Claimant’s claim both before and after the EAT’s decision in Forstater.
- Even if it would have been just and equitable to extend time until after the EAT’s judgment in Forstater, it was not just and equitable to extend time to cover the Claimant’s further three-month delay following publication of the Forstater judgment.
- For the entirety of the period in question, the Claimant was not required to do anything in relation to the BSB proceedings so it was not just and equitable to extend time on the ground that he had been preoccupied with them.
This case is a useful reminder that, although the tribunal’s discretion to extend time in discrimination claims is wider than that which applies in unfair dismissal claims (which are subject to a narrower “not reasonably practicable” test), it is still carefully applied. The high value of the case was not relevant. The Claimant was claiming over £3 million. He is not now able to pursue his claim at all.
Are tribunal fees on their way back?
The government has recently issued a consultation paperon re-introducing fees in employment tribunals and the Employment Appeal Tribunal. Tribunal fees were previously introduced in 2013. They were subject to judicial review in Unison v The Lord Chancellor and, in 2017, were found to be unlawful as an impediment to access to justice.
In the consultation paper, the government says it has considered the impact of the Supreme Court’s 2017 judgment in Unison v The Lord Chancellor and proposes to introduce only ‘modest fees’. The Ministry of Justice admits the former fees ‘did not strike the right balance’ between claimants paying toward tribunal costs and protecting access to justice.
The key proposed fee is £55 to bring a claim in the employment tribunal. It is a one-off fee, with no further fee payable when the hearing is imminent, and no distinction between different types of cases. The fee will be £55 whether it is a single Claimant or a multi-party action. Similarly, there would be a £55 to start an appeal in the Employment Appeal Tribunal. A system for remission from fees will exist for those who genuinely cannot afford the fees (as defined by the government). The consultation closes on 25 March 2024.
By pitching the fees at a ‘modest’ level the government is unlikely to be vulnerable to an attack on an ‘access to justice’ basis as they were before. The fees are so ‘modest’ that it’s questionable whether their introduction is worth the time and money that will be spent consulting on them and putting the mechanisms in place to levy them! It also remains to be seen whether the fees will be implemented in advance of any general election and if any new government will seek to reverse the changes.
Remember to ensure return of company property
A recent criminal case involving an ex-Sainsbury’s worker serves as a reminder to employers to make sure that departing employees have returned all company property before they leave employment. As reported in the Times newspaper, Holly Trevillion worked for Sainsbury’s as a cashier. She was sacked for attendance issues but failed to return her Sainsbury’s uniform.
After experiencing financial difficulties, she used her old uniform to go on shoplifting sprees at supermarket stores. She would fill her shopping trolley with groceries while pretending to be picking for online orders. She used the uniform to disarm other staff and avoid suspicion. In court she admitted five counts of fraud by false representation. She received a two-year conditional discharge and ordered to pay £206.28 compensation to Sainsbury’s and £111 costs and victim surcharge.
This example serves as a reminder to employers that they should make sure that all company property, including uniform, is returned to them when an employee leaves their employment. It is reasonable to issue an instruction requiring this. If those working in your business wear uniform, then make sure you keep records of what has been issued to each employee and make sure that all items are accounted for when they leave your employment. If Sainsbury’s had done this then the ex-employee’s shoplifting spree would no doubt have been spotted much earlier.
Disclaimer: This post is for information purposes only. Reasonable steps have been taken to provide accurate information, but no responsibility is taken by the author (Hunter Law Ltd) for any consequences arising from its usage.
This post is not intended to and does not constitute legal advice and you should instruct a solicitor formally should you require this.
