Religious Discrimination and Philosophical Beliefs

As many will be aware the Employment Equality (Religion and Belief) Regulations 2003 provide that it is unlawful to discriminate against an employee/worker on the grounds of their religion or belief.

It also provides that Religion means ANY religion and belief means any religious or philosophical belief.

But just how far does philosophical belief extend?

The Employment Appeal Tribunal (Burton J: sitting alone) has handed down its decision in Grainger Plc & others v Nicholson and it held that a belief in man made climate change and the moral imperatives arising out of this are capable of being a philosophical belief within the context of the regulations.

Not only this, but the EAT further sets out guidance as to what will likely qualify as philosophical beliefs within the regulations. Paragraph 24 of the judgement provides that in order to qualify the following will need to apply:

1. The belief must be genuinely held.
2. It must be a belief and not a viewpoint or opinion based on the present state of information available.
3. It must be a belief as to a weighty and substantial aspect of human life and behaviour.
4. It must attain a certain level of cogency, seriousness, cohesion and importance.
5. It must be worthy of respect and compatible with human dignity and not conflict with the fundamental rights of others.

The EAT further held that whilst there would need to be some similarities to religious beliefs in terms of the extent as to how someone would hold such a belief, Burton J did go onto say that a one off belief that is not held by others need not be excluded from within the regulations.

Whilst this might seem to open up the floodgates his comments later on into the judgement slam them firmly shut in relation to beliefs that clearly fall inside the limitations listed above. For example the belief in the supremacy of the Jedi Knight would clearly fall outside of the protection of the regulations but a philosophical belief such as vegetarianism might well be capable of being protected by the regulations.

I have to say that this judgement has made interesting reading and no doubt will be used in future cases. For a look at the judgement click here

If you do need advice on this subject please contact me on gda@hrlegalonline.com

TUPE and Duty to Consult

As you are no doubt aware, when a business or part of a business is going to be transferred elsewhere the obligations posed by the TUPE Regulations are that employers must consult with their employees pre transfer and tell them about the legal, social and economic implications.

But what about if the employer gets it wrong? What if the employer (wrongly) believes that the TUPE regulations do not apply? It could of course be argued that by getting it wrong the employer has failed to tell their employees about the legal implications of the business transfer.

This matter has been considered in Royal Mail Group Ltd v Communication Workers Union in the Court of Appeal.

The Court of Appeal held that a transferor employer is only duty bound to communicate the legal, social and economic implications of the transfer as they believe them to be. There is no duty to get it right as such providing of course they have made reasonable effort.

This will be great news to employers but, saying this there are implications over what reasonable efforts employers will have needed to go to. Normally the Employer would get legal advice on this issue which might be legally privileged. An employer might need to consider waiving his right to legal privilege and disclosing what advice he was provided with.

For advice on business transfers please contact me on gda@hrlegalonline.com

Employment Judges - No longer a cushy number

Most Employment Lawyers at some point approaching their later career think about an appointment as an Employment Judge, and some might be persuaded. But perhaps there should be an element of danger money!

The Daily Telegraph last week reported that an Employment Judge has actually been assaulted during a Case Management Discussion. The assault allegedly took place in a Case Management Discussion which is a very neutral hearing where the Judge gives Orders for the good management of the case moving forward.

The Employment Judge concerned (Judge Carstairs) I have appeared before, and whilst he is rather robust (as good Employment Judges should be), I have always found him to be even handed. I am also aware that Judge Carstairs has been considerably unwell some months prior to this hearing - I don't suppose this instance helps.

For the full story click here

Lawful to force retirement at 65

The High Court has handed down its long awaited decision in the Heyday case in which it had been asked to decide whether it was lawful to force a member of staff to retire at 65. The High Court has held that it is lawful under UK law to force a member of staff to retire at 65.

I previously covered this case when it was before the European Court of Justice in March and I have provided a link to this here.

The BBC have also given some coverage of the latest decision before the High Court and this can be viewed here.

If you require further information please do not hesitate to contact me on 0870 756 2929 or gda@hrlegalonline.com

DDA - House of Lords Decision

The House of Lords has handed down its decision in SCA Packaging Limited v Boyle - essentially wiping the slate clean from previous authority, the word 'likely' actually should be interpreted to mean 'could well happen' as opposed to 'more likely than not'.

Authorities previously interpreted 'likely' to mean more likely than not and thus would impose a test as to whether there was a 51% chance of an event occuring within the context of the DDA; this has now firmly been rejected by the House of Lords and practitioners should be prepared for the much lower threshold being applied.

If you need further advice on this issue please do not hesitate to contact me on 0870 756 2929 or gda@hrlegalonline.com

Equality Bill - Published at last

The long awaited and eagerly anticipated Equality Bill has now been published in its first draft form and given its first reading. Needless to say it will subject to considerable debate through the various houses but a first draft however can be seen here.

The Bill itself proposes the following:-

• Allows positive discrimination during recruitment in favour of disadvantaged groups when faced with candidates who are otherwise equally qualified

• Reverses Malcolm v London Borough of Lewisham, and abolishes the list of areas in which a disability must impact (eg mobility, manual dexterity, memory or ability to learn, concentrate or understand etc.) I know this judgement caused unrest due to making it more difficult for claimants to succeed in claims of direct disability discrimination and as such this reversal is likely to slip through. Watch this space!

• Contains a clause allowing the Secretary of State to order employers with more than 250 employees to publish information about disparities in pay between male and female employees - although apparently the government has anounced that this power will not be exercised in the next four years. This will impact medium sized employers in terms of the administrative costs of maintaining such information.

• Outlaws any clauses in employment contracts which impose a secrecy obligation stopping employees discussing their pay packages. It has been a long held custom within certain organisations that pay not be discussed between staff members - whilst this will force employers to be more transparent, this could of course breed unrest and poor morale within businesses where there is disparity in pay but for lawful reasons such as skills, and performance.

• Introduces a new obligation for some public bodies to pay due regard to socio-economic disadvantage in making strategic decisions, and extends public sector duties to ensure equality to age discrimination

• Gives effect to recent European caselaw by outlawing discrimination by association.

These are all areas which will impact on the employers manage their staff and they should be prepared to take advice at every opportunity.

EAT follows Malcolm again! (And I become very smug)

When the House of Lords turned the current understanding of Disability Discrimination law on its head by its ruling in Malcolm v London Borough of Lewisham I predicted that because this case made it more difficult for claimants to succeed in Direct Discrimination claims, Employment Tribunals would instead focus on the duty to make reasonable adjustments and would be likely to come down heavier on any failure. My comments were:

"Whilst this creates some difficulties for claimants, employers should still be cautious. Within the judiciary the law relating to disability discrimination is still deemed to be highly unsatisfactory and Employment Tribunals will more than likely focus on the duty to make reasonable adjustments and hit respondents heavily when they have failed to comply. This is especially so given that less claimants are likely to succeed under other ares of their disability discrimination claims".

The EAT has just handed down its latest judgement in Stockton on Tees Borough Council v Aylott and has applied Malcolm to another DDA case. However the EAT has held (and as predicted) that just because Malcolm is good law in respect of employment claims, and although this case does make it more difficult for claimants, they should not be left without redress. Slade J comments are para 113 makes it very clear the line of enquiry Tribunals will be encouraged to take when she states:

In our judgment this conclusion need not leave disabled people who are disadvantaged for a reason relating to their disability but treated in the same way as non disabled people without the possibility of redress. Although they may not now be able to establish that they have been discriminated against for a reason related to their disability within the meaning of Section 3A(1), they may be able to establish discrimination by the employer's failure to make reasonable adjustments under Section 3A(2) and 4A. An employee who is not able to drive because of his disability who is disciplined for frequently arriving late for the night shift would not be able to establish discrimination for a reason related to his disability if a non disabled person with a similar record of bad time keeping would also be disciplined. However, depending on the circumstances, he could claim that his employer had discriminated against him by failing to make a reasonable adjustment by not providing him with transport.

Again this is a call to Employers to be careful when dealing with disabled employees or those potentially disabled. Advice should be sought at every opportunity and furthermore at the outset of any issue. I can be contacted on gda@hrlegalpartners.com for further advice if needed.