There are plenty of changes ahead for 2020 and employment law is no exception! One of the changes coming in April relates to “section 1 statements”. Our specialist Employment Team have put together a useful overview of the changes.
We will be hosting our next Employment Masterclass on Thursday 26 March 2020. The event will focus on how to protect your business. We will give you some practical and commercial steps that you can take to protect your confidential information, trade secrets and intellectual property, please email Laura Courbet if you would like to attend the event.
We are always talking about key legal developments, topical issues and what we are up to, so please follow us (@ClarionEmpLaw) to be kept up to date between our monthly newsletters.
The government has confirmed that bereavement leave for parents will be introduced for children who die on or after 6 April 2020. This will only apply to children aged under 18 years.
A parent (including an adopter) will be entitled to take one or two weeks of bereavement leave. The weeks do not have to be consecutive. The leave can be taken any time within 56 weeks of the child’s death. The employee is required to give one week’s notice of taking the leave.
The leave is paid at £151.20 per week, or 90% of salary - whichever is lower.
Defining a protected belief
Towards the end of 2019 we told you about the case of Conisbee v Crossley Farms Ltd and others  where an individual had argued that he had been treated unfairly because he was vegetarian. He was arguing that vegetarianism is a protected belief under the Equality Act 2010 and was unsuccessful in this argument.
We now have the case of Casamitjana v League Against Cruel Sports  in which an individual alleges that he was dismissed due to raising concerns about a pension scheme investing in companies that use animal testing. He is an ethical vegan and argued that he was being discriminated against due to his belief. He had to show that ethical veganism was a protected belief under the Equality Act 2010, and he was successful in the argument.
So, why has the Employment Tribunal concluded that vegetarianism is not a protected belief, but veganism is, and what does this tell us about the way that we should manage the impact of employee’s beliefs in the workplace?
To answer the first part of the question we need to go back to the definition of a belief in the Equality Act 2010. To be a protected belief, the issue in question must have the following characteristics:
- The belief must be genuinely held.
- The belief must be more than an opinion, or a viewpoint based on information which is available.
- The belief must be 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.
- The belief must be compatible with human dignity and not conflict with the fundamental rights of others.
When assessing vegetarianism, the Employment Tribunal noted that there are many different reasons that someone might be a vegetarian. It might be a dislike of meat, it might be a health issue, it might be concerns about animal welfare. Therefore, there is a lack of cogency and the Tribunal concluded that it was more of a ‘lifestyle choice’ rather than a belief.
However, ethical veganism goes further than vegetarianism. There is a common argument that any killing of animals for human gain is wrong, and it has more impact on the way that individuals run their lives. It has been found, therefore, to be a protected belief.
Note that Casamitjana has not won his claims of unfair dismissal and discrimination. He has just passed the hurdle of a preliminary hearing ruling that veganism is a protected belief, which means that his claim can now proceed.
- Assessing whether a belief is a protected belief is not straightforward. Never reject an individual’s argument that a particular belief might be covered – talk to us so that we can help you in your analysis.
- Even if a belief is not protected, individuals should not be treated less favourably because of views that they hold. Make sure that line managers stop any teasing or discussion which upsets an individual.
- If an employee’s beliefs are particularly controversial or upset other employees you can ask them not to discuss their beliefs, and issues relating to them, during work time.
A man and a woman doing the same work should be paid at the same rate for that work. If there is a difference in pay this must be justifiable (for example paying one more than the other because they are better qualified and take on the more complex tasks).
In the case of Ahmed v BBC  the claimant was Samira Ahmed, who many of us will have seen as a News Presenter on the BBC. Ahmed argued that she had been paid unfairly, comparing herself to Jeremy Vine – another presenter. Ahmed argued that her work as a presenter on Newswatch was comparable to Vine’s work on Points of View. Ahmed was paid £440 per programme, and Vine was paid £3000 per programme.
The BBC argued that the difference was attributable to the difference in profile of both the programmes and the presenters, the difference in market rate and that Vine had negotiated a higher rate because a rival broadcaster had tried to attract him away from the BBC. None of these arguments were accepted by the Employment Tribunal, and they found in favour of Ahmed.
- Carry out regular audits of gender differences in pay so that you are aware of any allegations of equal pay that might arise.
- Remember that equal pay claims can also be made if an employee argues that their job is of ‘equal value’ to someone of the opposite gender, or that it has been evaluated as being of the same level.
- Equal pay claims can be very expensive to address, so if there is any suggestion of a possible complaint please contact us to discuss as soon as possible.
Taking care when managing mental health
The case of Bailie v ADM Investor Services International Ltd and another  reminds us of the importance of taking care when managing a disability relating to mental health.
The employee worked in a senior role and was diagnosed with depression caused by work related stress. Whilst he was absent due to ill health the organisation informed him that there would be a restructuring which would take away his management responsibilities. He was very distressed by this. Although it could be seen that management were trying to resolve his difficulties by taking away some of his duties, not involving him in the discussions about this was found to be discrimination on the grounds of disability.
- If an employee is struggling with their work involve them in discussions about what could be done to resolve the difficulties.
- If the work impacts mental health such that it has a substantial and long-term adverse effect on their ability to carry out normal day to day activities it is likely to be a disability. You then need to make reasonable adjustments to help alleviate any disadvantages caused by the disability.
The importance of reasonable adjustments
In the case of Harkness v Holland and Barrett Retail Ltd  the Claimant was a Store Manager who suffered from anxiety and a bladder condition which could result in her needing to urinate urgently.
The circumstances that gave rise to the claim resulted from a proposal by Holland and Barrett to change working hours such that staff could be working alone for 30 minutes at the beginning and the start of the day. The Claimant raised concerns about this, because there was the risk that she would need to leave the store unattended due to her bladder difficulties. The organisation did not work with her to find a solution to the problem, and therefore she was successful in her claim of disability discrimination.
- If an employee is disabled, as defined in the Equality Act 2010, you must identify any reasonable adjustments that can be made to help the individual overcome any disadvantage experienced as a result of the disability.
- Always keep a written record of any reasonable adjustments that you try which are not successful.
- Remember that you are responsible for identifying the reasonable adjustments. You cannot delegate this responsibility to the disabled employee.
Employer Justified Retirement Age
In the UK there is no retirement age. However, organisations can put in place an Employer Justified Retirement Age (EJRA) if they can show that it is justifiable. The employer must be able to show that the same outcome cannot be reached in a less discriminatory way. For example, this could be putting in place a retirement age because the job is very physically demanding.
In Ewart v Oxford University  the employee was forced to retire when he was turning 70 years of age. The University had put in place an EJRA to facilitate the creation of opportunities for younger colleagues to progress in their careers. However, it was found that this had only helped a ‘trivial’ number of younger staff, and therefore there was no justification for the retirement age. Ewart was successful in his claim of age discrimination.
- An Employer Justified Retirement Age is not easy to introduce, and there would have to be very strong justification for it. Please contact us before putting a retirement age in place.
- If it is found to be reasonable to put in place a retirement age you should still review it regularly, to ensure that a non-discriminatory way of addressing the issue has not arisen.
Dismissal for issues outside work
If an employee does something which leads to a criminal conviction it might be fair to dismiss, but there is still a requirement to carry out a fair procedure and have regard to the circumstances surrounding the situation.
In Anderson v Fife Health Board  the employee was a gardener who had been working long hours, typically covering six days a week. In his own time, he was caught driving whilst over the alcohol limit and, following a criminal prosecution, was banned from driving. He was dismissed.
He argued that this was an unfair dismissal because his mental health had not been considered. He had been struggling, linking it to the long work hours, and had been on medication for mental health problems. The employer did not consider this, but dismissed him for gross misconduct because, it argued, gardeners were required to have a driving licence. The Tribunal found this to be unfair.
- If an employee is convicted of a criminal offence you could potentially dismiss, but you still need to carry out a fair procedure.
- If an employee is required to drive as part of the job and loses their licence this could be a reason for dismissal, but you would have to take into consideration the length of the driving ban and if there were any other duties that the employee could do during the ban.
- If an employee cites mental health difficulties that does not mean that you cannot dismiss. However, you must take this into consideration, and you need to be particularly careful if the mental health problems could be a disability as defined in the Equality Act 2010.
A final word: Dealing with pension and payroll queries
Many businesses (and, in particular, HR professionals) find themselves constantly dealing with payroll issues - incorrect payments, employee queries, explaining the payments to individual employees etc. When you factor in: shift work, overtime, salary sacrifice, different allowances, pension contributions, holidays, and benefits - paying people correctly can get very complicated.
If you feel that you are spending a disproportionate amount of time dealing with issues around payroll, pension contributions or employee benefits or if you think those areas are overly complicated and costing the business money, you may want to consider an audit of your payroll or pension obligations, which will look at your systems and how they might be simplified and also options to reduce costs in this area.
If this sounds of interest, let us know and we can pass on your details to WPD Group, a specialist in this area, to undertake a free audit.