Employment update | Top three in 3 minutes | 15 October 2019

Written on 15 Oct 2019

1. When do an individual’s beliefs attract legal protection at work?

An individual’s religious and philosophical beliefs can be protected under the Equality Act 2010; most recently, the Employment Tribunal has held that vegetarianism is not a protected philosophical belief. It was not disputed that the claimant had a genuine belief in his vegetarianism, but the Tribunal ruled that it “is simply not enough to have an opinion based on some real, perceived, logic”. To qualify as a protected characteristic, the belief must be weighty and a substantial aspect of human life and behaviour. Perhaps surprisingly for some, the Tribunal found that vegetarianism is not about human life and behaviour, but rather is a lifestyle choice. On whether the claimant’s belief attained the requirement of a certain level of cogency, seriousness, cohesion and importance, the Tribunal drew a distinction between veganism, where there is a clear cogency and cohesion in vegan belief, and vegetarianism, which has numerous, differing and widely varying reasons for its adoption, (such as lifestyle, health, diet and concern about the way animals are reared for food).

Action: It is difficult to predict which philosophical beliefs will meet the threshold. For example, the Employment Appeal Tribunal has held that a belief in man-made climate change and that we all have the responsibility to live in a way that mitigates it is capable of qualifying as philosophical belief. Employers should be mindful to respect and respond to employee’s genuinely held beliefs with sensitivity. Dietary choices should be catered for and any negative behaviours towards staff for holding a belief in vegetarianism or veganism should be dealt with under the disciplinary procedure, where appropriate. Employers should be prepared for a potentially different ruling on veganism and start thinking about any adjustments that might be required.

2. Court of Appeal confirms importance of not lying about the reasons for a dismissal

The employee, a clothes photographer, was purportedly dismissed for redundancy. However, the employer later amended its ET3 response to the employee’s various claims, to include a new reason: a suspicion that the employee was concealing clothes with the intention of stealing them (these allegations had not been raised before this point). The Court of Appeal held that the manager’s persistence in lying about the real reason for the claimant’s dismissal (to avoid confrontation) made a prima facie case of race discrimination, therefore reversing the burden of proof onto the employer to demonstrate that the dismissal was not discriminatory.

Action: There have now been a number of cases where an employer has allegedly ‘dressed up’ a dismissal as being something which it is not, such as a redundancy, and by doing so has left itself in a vulnerable position. It is essential that employers are clear about the reason for a dismissal. Here, the employer’s evasiveness in specifying its true reason for dismissal was central to the finding that race was a factor in the employee’s dismissal. Had the employer’s suspicions been fairly raised and investigated following a transparent process, the outcome would no doubt have been different.

3. Mental health in the workplace

With mental health awareness day taking place last week, there has been much in the news about mental health difficulties and the impact this has on as many as one in four people. All employers need to be alert for the signs that any of their staff may have a mental health issue and promote good mental health practices in their workplace. Supporting the health and wellbeing of employees is more effective in reducing sickness absence than traditional strategies (such as monitoring), and providing a supportive culture reduces the risk of a claim of disability discrimination or failure to make reasonable adjustments. We are awaiting the outcome of the government’s consultation ‘Health is everyone’s business: proposals to reduce ill health-related job loss‘.

Action: Employers should review the policies and practices in place to promote a culture of openness and support around mental health issues. Training managers in how to spot potential problems and support their team members is essential. HR should also be alert to mental health issues when carrying out investigations, disciplinary and poor performance processes. Osborne Clarke has signed the Mindful Business Charter – a commitment to change working practices that can affect employees’ mental health and wellbeing and we have our own mental health champions. We are happy to provide in-house training on this for your business. Please do contact us if you would like to discuss how we can help.

 


Did you miss last week’s top three? Read it here and please do contact us or your usual OC Contact for any further details.