Trade Unions

PCS union AGS takes worker’s wage

In May 2019 John Moloney, the candidate for the Independent Left faction, was elected as Assistant General Secretary of the PCS Union. This is the second most senior full time officer (FTO) post in the union.

PCS watchers will know that in respect of the Independent Left’s (IL) policy platform for full time officers there are two central positions:

  • for an extension of elections for FTO positions
  • for FTO’s to be paid a worker’s wage

To be candid I think both positions are problematic but especially the first (an idea I was once attracted to) but that is by the by.

In line with the IL’s policy John Moloney committed if elected to the AGS post he would take a worker’s wage – which is taken as being a salary of an average PCS member being an Executive Officer within DWP (not an unreasonable conclusion in my view). I made some not especially serious comments about this while the election was ongoing, which given the update below appear to have been on point.

Now he has taken up post John Moloney has provided an update to members on the IL website which I repost in full:

I have now signed a contract with the PCS and have become an employee of the union from the 1 July. As such I am entitled to a salary of £69,466 a year (£5,788 a month).

As part of my election platform though, I promised not to take the full AGS salary but only take home the wage of a DWP Executive Officer (EO) working in London.

EO is the most common grade in the Civil Service; DWP is the biggest part of the Service and I work in London. Therefore it seems to me that the EO salary is a representative wage of members in the union. Further, in my opinion it is a workers’ wage.

I asked the union only to be paid this but PCS stated that I had to take the full money. Therefore I am donating the difference between the AGS net pay and EO net pay to the fighting fund.

According to tax calculators having a gross monthly salary of £5,788 should mean earning £4,069 net.

DWP London EO salary is £30,303. According to the same calculators this leaves £2,012 net. Therefore I will be giving back £2,057 a month to the PCS; 24,684 a year.

To put this into context, the recent week long strike by BEIS cleaners/catering staff cost the union approx £20,000 in strike pay.

I have opted out of the PCS pension fund. If I am not taking the full wage, it seemed wrong to me to get the indirect benefit of the full salary through the pension scheme. I have decades of reckonable service in a Civil Service pension so I am lucky compared to most. I can well understand therefore someone with much less pension service opting into the PCS pension scheme.

It is my intention to publish my end of July wage slip and my standing order to the Fighting Fund, so proving that I have fulfilled my pledge. I will ensure that in the annual accounts, my contribution to the FF is shown (rank does have some privileges).

I must stress that my stance on the AGS wage is not that of a hair shirt moralist; it is political. During the five years of my contract, my take home will only increase in line with that of DWP London EOs. Poor pay awards will hit me in the same way as members. Therefore there will be a real organic link between my material well being and that of members. So at least in the pay sense, I can say I am one with the members and have no separate material interest to them.

John Moloney

PCS Assistant General Secretary (in a personal capacity)

Unfair Dismissal

You’ve got to be joking?

According to media reports Asda have summarily dismissed an employee (that is, have determined he has committed an act of gross misconduct) for sharing a clip on social media of Billy Connolly criticising religion (and, as is his normal form, doing it with an expletive laden lexicon). The clip in question is apparently this (although it may have been longer):

The National Secular Society (not without reason) is kicking up a fuss about the case. Stephen Evans, speaking for the NSS, is quoted as saying

Sharing a sketch which mocks religious ideas and suicide bombers on social media should not be grounds for dismissal. Brian Leach has good reason to feel aggrieved and many other British citizens have good reason to feel concern about what this could mean for their own freedom of expression.

Any actions employers take to protect their reputations must be proportionate. We are therefore keen to explore what options may be open to Mr Leach to redress this situation.

Regardless of what happens next, this episode should make us sit up and take notice of the power we give to religious offence-takers, particularly in the social media age.

When I first read the story I had assumed there must be more to the story but on the basis of the information provided it looks like the story is just as it is reported (the best account I have seen is in Coffee House). The employee, a meeter and greeter for the supermarket, appears to have shared the expletive laden clip of Connolly on social media mocking Islam and Christianity, which, presumably some of his work colleagues have access to as a friend/follower of employee. One of those colleagues took offense and complained to the employer that the clip was offensive to his or her faith. The employer determined that sharing material that mocked and criticised two major world religions, specifically Islam and Christianity, was contrary to its social media policy and may bring the company into disrepute (as indeed it has, but perhaps not the way Asda envisaged!)

There is a possibility there is more to the case. Perhaps the employee made some comments when sharing the clip that were inappropriate, perhaps he shared the clip during working hours, or perhaps there was some other feature that made this much more serious than just sharing a social media post.

But, if not, then it is difficult to see how this decision, even with the very pro-employer range of reasonable responses test, can be be seen as anything other than a car crash of a decision that has not only harmed Asda’s reputation but may well have exposed it to completely unnecessary legal risk.

Aside from any unfair dismissal claims (and surely Asda will back down?) it is not hard to see that atheism, or a belief that all religions should be subject to satire and criticism, is itself potentially a belief that is a protected characteristic. A practice of Asda’s that social media commentary critical of religion, or even mocking religion, that is shared by employees should be subject to disciplinary sanction may itself indirectly discriminate Asda against atheists and similar beliefs.  As we have seen before in a not entirely dissimilar context, ostensibly trivial acts designed to impede religious or belief expression can have major legal repercussions (and at least in Ewieida ECHR challenge it concerned what an employee did while on the clock rather than in their own time).

Equality Act 2010, Trade Union Rules

RMT lose age discrimination case brought by union member

The Employment Appeal Tribunal has this week upheld the decision of an employment tribunal that the RMT union directly  discriminated against a union member when, by applying its own union rules, it refused the member the opportunity to stand for the union’s national executive committee (NEC) because of the member’s age.

In RMT v Lloyd the case concerns Anthony Lloyd, an RMT representative. In 2017 the union sought nominations for candidates to stand in an election for the union’s NEC, Mr Lloyd was nominated to stand by two union branches. However, the union rule’s had a clause which stated that:

Subject to complying with all other requirements imposed within the rules, every member seeking nomination in an election must be able to complete the full period of office required of the elected position prior to reaching the normal retirement age: which will not be later than reaching the age of 65 years.

Because Mr Lloyd was of an age where he would not complete the three year term before reaching the age of 65 years the RMT wrote to him to exclude him from eligibility to stand in the national election. The reason for this clearly unfavourable treatment is clearly by reason of age and so it was alleged that the RMT had directly discriminated because of age. However, since age is the only protected characteristic for which there can be justification for  the case turned on whether there was a legitimate aim for the policy which the tribunal decided could not be established. It is noteworthy that this policy was however recently reaffirmed by the union’s conference in 2015.

The RMT policy itself strikes me as wholly unconvincing, especially given there are ample ways the purported aim of inter generational fairness could be achieved by less extreme means, especially given the union’s principal rule (along with most union’s) to oppose all unfair discrimination.

However, the case is a relatively rare one whereby a union is sued for discrimination, especially by a union activist but is a good reminder that, as a trade association of workers the union itself can be subject to a discrimination claim by persons who are not employed by the union under section 57(2)(d) of the Equality Act 2010.

Trade Unions

FBU Officer Suspended from Union NEC

FBU have ejected a national officer, Paul Embery, from their national executive and have banned him from holding office for two years.

Embery has long been on the FBU NEC and has gained a certain notoriety  as organiser of the Trade Unionists Against the EU, and his willingness (unlike many other lexiteers) to share a platform with leading figures of the pro-Brexit hard right and some recent high profile allegations of anti-semitism. Last week he made his expulsion from the NEC public on Twitter.

The FBU themselves have (rightly) been tight lipped on the reasons for the decision but they have released a statement: 

An Executive Council-level Internal Union Discipline hearing took place on Wednesday 12 June 2019 to consider a report concerning Executive Council member Paul Embery, where the standard process of presentations and deliberations took place before decisions were made. Evidence in respect of six complaints was heard in accordance with the rules, over a period approaching 12 hours. The outcome was the award of a range of penalties in respect of a total of four complaints by the Executive Council. In the case of one of those complaints, it was resolved to award a debarment lasting two years.

The decision is subject to appeal and, of course, potentially it is open to him to pursue a complaint to the Certification Officer  of unfair subjection to disciplinary proceedings.

 

Disability

‘Correctable’ Disability

The definition of disability in the Equality Act 2010 has been covered a number of times in this blog, and comprises of four core requirements:

  • That the individual has a impairment; and
  • That this impairment affect their normal day to day activities; and
  • That this effect is substantial (which means more than trivial); and
  • That this has or is likely to be a long-term condition.

Sometimes a condition will be a disability even if all these requirements are not met, cancer is one example. However, conversely, some conditions even if they were to meet all four of the above requirements. These are set out in  The Equality Act 2010 (Disability) Regulations 2010 and the conditions range from Hay Fever to a tendency to set fires. However, in Schedule 1 paragraph 5 Parliament effectively added another condition to the prohibited list. 

The general position is that where a disability is treated and the treatment ‘cures’ the effect of the impairment then that is still considered a disability. So, for example, if a person had a mobility problem relating to their foot but, specialist footwear completely solved the problem then that would not stop the impairment being a disability under the Equality Act 2010, since the test is how the individual would be affected without the benefit of the treatment.

However, Paragraph 5(3) of Schedule 1 of the Equality Act introduces one exception:

Sub-paragraph (1) [that is the paragraph saying the effect of treatment or other measures should not be considered] does not apply—

(a) in relation to the impairment of a person’s sight, to the extent that the impairment is, in the person’s case, correctable by spectacles or contact lenses or in such other ways as may be prescribed;

So, if a person’s sight is ‘corrected’ by spectacles or contact lenses then they cannot be disabled even if the four criteria set out at the beginning of this post are met.

In Mart v Assessment Services Inc [2019] the EAT considered the scope of this case. Given the preceding summary the outcome of the case will not be a surprise but the case also provides a good reminder of the importance of careful identification of relevant issues.

Mrs Mart had diplopia, commonly referred to as double vision. She also experienced other long term conditions that may or may not have been linked to the diplopia. The facts around the originating employment tribunal is unclear as the EAT do not provide much detail and I have been unable to locate the original tribunal’s decision. However, the original claim was a claim of indirect discrimination and the disability claimed was diplopia.

In treatment of the double vision the claimant was prescribed contact lenses that did indeed correct her double vision. However, according to the claimant they had a side affect of harming her peripheral vision and causing a facial disfigurement. When making the claim however the claim expressly excluded a claim relating to depression and facial disfigurement (which can be a disability under the 2010 Act).

On the fact the EAT made two conclusions – first because the issue related to side effects of the treatment insofar as they were consequential to the treatment but were separate impairments could not be included. While the claimant could have argued that there were separate disabilities operative in the case she expressly chose not to and should have sought an amendment to the claim to include them.

Second,  because the double vision was indeed corrected by the contact lenses and since this was the impairment alleged to constitute a disability then applying paragraph 5(3)(a) the claimant’s sight problems were corrected by the treatment and so could not be a disability (this paragraph, it will be remembered, only applies to visual impairments that can be corrected by spectacles or contact lenses not to other disabilities).

The decision then is not in any way surprising but I think it is a useful by way of a reminder of the importance of ensuring all alleged disabilities are cited, not just in employment tribunal claims but also to employers. It is not not inconceivable that a more carefully pleaded case could well have had a different result. In this regard, the earlier decision of the EAT in Ginn v Tesco Stores Ltd UKEAT/0197/05 is helpful in its decision that for disability purposes the conditions that may not in themselves be disabilities can, when viewed together, amount to a disability.

 

 

 

Equality Act 2010, Uncategorized

Veganism and discrimination

Last year the BBC ran a story on what it described as a ‘landmark’ case on whether veganism, or more specifically, ethical veganism was a religion or belief for the purposes of the Equality Act 2010.

The factual background to the case is that the Mr Casamitjana was dismissed by his employer, the League Against Cruel Sports, for what the employer deemed to be gross misconduct. Mr Casamitjana however has (I assume) alleged that the dismissal was discriminatory, the exact label upon which the discrimination is alleged to occur is unclear but I would imagine it is a complaint of direct discrimination given the employer’s statement to the press that “Mr Casamitjana is seeking to use his veganism as the reason for his dismissal.”

Landmark?

Whilst the BBC (and Mr Casamitjana for that matter) seem to promote the case as landmark I really do not see it as such.  The protected characteristic of religion of belief in the Equality Act is broad and includes philosophical beliefs of which ethical veganism is potentially surely one whether there has been a case considering this or not.  The test for whether a philosophical belief is covered by the protected characteristic of religion or belief is set out in the EAT’s decision in Grainger PLC v Nicholson [2009]. Grainger, which itself concerned the alleged protected belief of climate change and the environment, sets out that five questions need to be answered affirmatively, and if they are then the belief is protected:

(i) The belief must be genuinely held.
(ii) It must be a belief and not an opinion or viewpoint based on the present state of information available.
(iii) It must be a belief as to a weighty and substantial aspect of human life and behaviour.
(iv) It must attain a certain level of cogency, seriousness, cohesion and importance.
(v) It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others

What is noteworthy is that it appears likely that the EAT’s decision takes the scope of religion and belief discrimination much further than the then New Labour government that introduced it intended – for example, in 2010 after the EHRC issued guidance that veganism was probably a protected belief the Government Equality Office objected to this expansion saying

the government did not share the view that climate change or veganism were religious beliefs; however, the interpretation was a matter for courts. The spokesman said: “The Equality Bill does not change the existing definition of religion or belief and the Government does not think that views or opinions based on scientific – or indeed on political – theories can be considered to be akin to religious beliefs or philosophical beliefs. Nor was it the intention in introducing the legislation that such beliefs should be covered (source).

Be that as it may the broader approach has indeed been accepted by the courts and it is not hard to see that ethical veganism is quite capable of meeting these five Grainger tests. Indeed, the EHRC in its Religion and belief guidance is explicit that “Beliefs such as humanism, pacifism, vegetarianism and the belief in man-made climate change are all protected.” There is no sensible reason why vegetarianism should be a protected belief and veganism is not.

Again, quoting from the BBC’s piece, Peter Daly the solicitor for Mr Casamitjana explains that if his client is “successful, we will achieve a judgment which formally recognises the protected status of ethical veganism and which could then be used as the basis to combat discrimination against vegans in employment, in the provision of goods and services, and in education. This is therefore a landmark case.”

Frankly, whether a tribunal has ever formally recognised ethical veganism as a protected belief or not it is little more than PR to describe this as ‘landmark’ the fact that according to Mr Casamitjana’s own crowdfunding appeal this apparently ‘contentious’ issue has now been conceded by the employer.

What seems more likely is that the real battle will be not on whether the treatment was because of the protected belief itself or because of conduct that arguably grew out of that belief similar to the recent Court of Appeal judgement in Kuteh upholding the fairness of the dismissal of a Christian nurse for inappropriate proselytism during work hours.

Protected Belief

To continue with the vegan theme I note that the Daily Mirror is reporting today on demands to outlaw vegan discrimination, with Alex Monaco a solicitor being quoted as saying:

If you were Jewish or Muslim and told to get a round of bacon sandwiches in, no one would bat an eyelid if you refused. But if you’re vegan and refused to buy a pint of milk to make tea because you believe the dairy industry is torturing cows, then you would be laughed out of the kitchen. Employers should have a duty to ensure vegans are protected at work and are offered options. The ultimate aim is to get the law changed so that the Equality Act includes vegans.”

I have to confess it does strike me as a strange demand since, as should be clear, there is no reason that claims of discrimination at work on the basis of veganism cannot already, on the current law, be pursued meaning there is no need to “get the law changed” at all. The mission is already accomplished!

Equality Act 2010, Race Discrimination

Banter?

Section 26(1) of the Equality Act 2010 makes it unlawful for a person to subject another person to unwanted conduct that is related to a protected characteristic so long as that conduct has the purpose or effect  of violating the recipient’s dignity or creating an offensive, humiliating, hostile or degrading environment.

Whether conduct has that effect is an objective decision on the part of the employment tribunal but one, under section 26(4) of the 2010 Act, in which three factors must be considered: i) how the recipient perceived the conduct, ii) other circumstances of the case, and iii) whether it is reasonable for the conduct to have that effect.

This was the issue in the recent case of  Evans v Xactly Corporation Ltd [2018] UKEAT 0128_18_1508. The claimant, who had links with the travelling community, brought a claim of harassment related to race on the basis of comments directed to him whilst at work that he was “a fat ginger pikey.” Pikey is a pejorative term term related to the Irish traveller community (some background from the BBC website is here).

In the judgement (which relates just to a permission to appeal application) the EAT notes that the employment tribunal “entirely understood that on the face of it the “fat ginger pikey” comment is a derogatory, demeaning, unpleasant and a potentially discriminatory and harassing comment to make.” Indeed, exactly the same type of language in other contexts has been found to be racially aggravated criminal conduct.

However, despite this, the ET found that in the circumstances, including that the comment was made by a friend of the claimant’s and in a context of frequent other insulting comments by multiple comments from other parties that the comments did not amount to harassment.   It is a decision the EAT endorsed. This is because, applying the previous EAT decision in Richmond Pharmacology v Dhaliwal [2009] UKEAT_0458_08 that set out that “Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly where it should have been clear that any offence was unintended.”

On that basis given the facts it is perhaps understandable on the application of section 26(4) of the 2010 Act that the tribunal reached the view that the conduct vis a vis the claimant was reciprocated and ‘friendly’ and so not undermining of dignity (although perhaps it would have been different if another employee had complained) even though in most cases such conduct clearly would be.

Still, I find the decision troublesome. The notion that ostensibly racist comments should not (on a liability basis) be deemed to be unwanted because there was no complaint seems to unjustly shift the burden to the victim to prove they were unwanted and injurious to one’s dignity. Elsewhere this same issue was addressed in respect of alleged sexualised banter/harassment in Munchkins Restaurant Ltd & Anor v. Karmazyn & Ors [2010] UKEAT 0359_09_2801. In that case a number of complainants alleged they had been subject to sexual harassment at work in the form of discussion about their sex lives, with which it was acknowledged they had participated in.

The employer in that case adopted a defence that the claimant’s non-complaint and participation showed this was not unwanted conduct. It was a defence the EAT entirely disregarded (para 23):

One of the lay members of this Tribunal has observed that there are many situations in life where people will put up with unwanted or even criminal conduct which violates their personal dignity because they are constrained by social circumstances to do so. A classic example, she points out, is that of the battered wife who for the sake of the children may remain at home permitting herself to be subject to violence, none of which she wishes, but all of which she endures because there is a greater benefit in what takes place. But it does not make the violence right. Putting up with it does not make it welcome, or less criminal. It is therefore not completely beyond the scope of reason to think that women in this particular situation should behave as they did. As to initiating conversation it is explained in the passages we have cited by the Tribunal as being a defensive move on behalf of the Claimants, enabling them to divert much of the intentions of Mr Moss from the intrusive personal questioning which otherwise would have taken place as to their own sexual preferences, habits and contacts.

There is certainly some evidence that the claimant in Evans was in a vulnerable situation with respect to the security of his employment that is in some sense analogous to the situation in Munchkins in which the claimants’ participation in offensive conduct was seen as a defence mechanism.

More pertinently however the Equality Act is legislation aimed as a social as well as legal purpose. What Evans case shows is that that conduct that will widely, and rightly, be held to be offensive and derogatory conduct related to race can, because of an ingrained workplace culture of prejudice, is thereby deemed to be lawful conduct. Can that be right? I wonder if a preferable approach would be to mark out such conduct as unlawful whilst allowing the question of what is just and equitable in terms of remedy very much open such that if, as the tribunal appeared to decide in Evans, there was no significant offence caused and ‘he gave as good as he got’ then only nominal damages should be awarded?