Employment Law Update - January 2020 - Vista
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Employment Law Update – January 2020

Happy new year and welcome to the first employment law update of 2020.

By now, most people will have returned to work. Many will have come back with the hope of having, and sticking to, a new year’s resolution. And if that resolution has been to go green and become vegan, some managers may well be hiding under their desks.

Why?

Well, this month saw a landmark case where, for the first time, a tribunal classed ethical veganism as akin to a philosophical belief, unlocking the door for protection under the Equality Act.

Could this mean a raft of employees refusing to work on elements of your business that they say are somehow linked to the death of animals? Can a check-out worker refuse to put meat through the till? Can a driver refuse to haul wool products?

Well the message from Vista is don’t panic!

Religion and belief is one of nine protected characteristics under the Equality Act. But what constitutes a belief? Let’s take a moment to remind ourselves of what the key elements are for a belief to be protected under the Equality Act 2010.

In order to be protected, the belief must be:

  • Genuinely held;
  • Be a belief not an opinion or viewpoint;
  • Concern a weighty or substantial aspect of human life;
  • Have attained a certain level of cogency, seriousness or importance (in a similar way to a religion);
  • And must be worthy of respect in a democratic society.

And meeting the above criteria is exactly what a Tribunal found vegan Jordi Casamitjana’s beliefs did when his case against the League Against Cruel Sports came before it in January.

In case you missed it, the full story is available here.

Mr Casamitjana claims he was sacked by the welfare charity when he found out it invested pension funds in firms involved in animal testing. Feeling that there was a failure by his employer to respond to his discovery, he disclosed the revelation to his colleagues.

The Tribunal ruled that his belief qualified as a philosophical belief under the Equality Act 2010, given it ticked boxes such as being worthy of respect in a democratic society, not being incompatible with human dignity and not conflicting with the fundamental rights of others.

So, What Does this Mean?

Does this mean that every employee taking part in Veganuary can now be afforded an extra layer of protection from discrimination? Can they refuse to come to work because the canteen only serves sausages?

In the majority of cases the answer will be no. There are three main points to consider:

1. Look at the Facts

Firstly, in reviewing the ruling it’s important to look at the specific facts of the case. Mr Casamitjana was a true ethical vegan, to the point where he would refuse to get the bus for fear it would collide with an insect.

This is far over and above simply not eating eggs or meat because you feel it would be better for your health.

In this respect the core rules remain the same – an individual would need to show that veganism, or indeed any other belief, is capable of meeting the criteria set out above, and this remains a high threshold.

2. The Decision is not yet Binding

Secondly, the case has only been heard at the first Employment Tribunal stage. As such the ruling on ethical veganism is not binding.

3. It’s Not a Blanket Excuse

The final point is, it is important to remember that simply having a philosophical belief is not necessarily an excuse for perceived misconduct. Indeed, whether or not ethical veganism was a philosophical belief was not contested by the League Against Cruel Sports. The tribunal is yet to consider, what the League has stated is the crux of the issue, whether it was right to dismiss Mr Casamitjana on the basis of gross misconduct.

This is something that has been considered in the case of Forstater v CGD Europe. In this case an employment tribunal has looked at whether the philosophical belief that humans cannot change sex is protected by the Equality Act 2010. The employee was a consultant charity worker. She tweeted extensively (in a private rather than work capacity) on proposed changes to the Gender Recognition Act 2004 (GRA). One tweet read: ‘men cannot change into women’. Other employees complained and her contract was not renewed. She brought a discrimination claim, saying her contract was not renewed because of her belief about sex change.

The employment tribunal found that the belief met the thresholds set out above save for one aspect: her ‘absolutist’ belief was incompatible with human dignity and the fundamental rights of others. Her belief meant that she would refer to someone by their birth sex even if that violated their dignity or created an intimidating or hostile environment for them. This belief was not worthy of respect. She did not get protection under the Equality Act 2010 and could not bring a discrimination claim.

The Judge in this case said that campaigning against changes to the GRA and calling for spaces for women assigned female at birth is one thing but insisting on calling transwomen men is something else entirely. It is this violation of someone else’s dignity that stopped her belief being protected in law. Again, this was an employment tribunal decision and not binding on other courts.

However, it goes to show that simply having a philosophical belief is not a bullet proof vest to act as you please.

In this months full update, we also cover the issues of:

  • Worker status in Stuart Delivery v Augustine
  • TUPE Transfers and Workers in Dewhurst v Revisecatch & City Sprint
  • Whistleblowing in Royal Mail v Jhuti
  • Holiday Pay and Carryover in TSN v Hyvinvointialan
  • Sex discrimination in City of London Police v Geldart
  • Redundancy – alternative employment and trial periods

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