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!

Direct Discrimination: Defences

It is a couple of months since I promised the last post in my brief series on direct discrimination with a summary on an employer’s defence to direct discrimination claims. Life got in the way, etc.

But first a recap,  section 13 of the Equality Act 2010 sets out that that no employer can treat a worker less favourably because of a protected characteristic than they would treat another person who did not share that protected characteristic. A protected characteristic is one of the following: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex or sexual orientation. When they do so they directly discriminate the employee.

It is commonly said that with the exception of direct age discrimination there is no defence to direct discrimination. With the exception of the statutory defence which is only rarely successful (and is summarised below) and the special defence available in age discrimination complaints (also summarised below) this is strictly correct but it is also misleading. The fact is direct discrimination cases are hard to prove and the absence of any proportionality defence means that the battleground is on whether the elements of direct discrimination are met. What in fact is meant by the claim of there being no defence is that where direct discrimination is found there is no justification defence (as there is on most other types of discrimination claim. In no particular order, the 10 defenses I have thought of (there may well be more) are:

1. Proportionality

Unlike indirect discrimination claims an employer has no defence that their conduct was a proportionate means of achieving a legitimate aim. This is not a legal definition but I often view this as a ‘this is not an ideal situation but it is the least bad one we could implement’ type scenario. That is, however, unless the protected characteristic engaged is that of age. In which case, section 13(2) of the Equality Act 2010 specifies that treating an employee less favourably because of age is in fact lawful so long as the conduct is a proportionate means of achieving a legitimate aim.

Whilst the language used is the same as used in elsewhere in the Equality Act decisions of the European Court of Justice (ECJ) have severely limited the scope of this defence. A legitimate aim for the purposes will now be a social policy objective and therefore, especially for private employers, this will be a difficult defence to mount. The Supreme Court has confirmed the somewhat niche nature of this defence in Seldon v Clarkson Wright & Jakes [2012]. In fact, even in the case of public employers this has been a difficult test to meet. Earlier this year the Court of Appeal (the decision is expected to be appealed to the Supreme Court) decided in  The Lord Chancellor & Anor v McCloud & Ors [2018] that a government implemented pension change that treated older workers more favourably (in order to soften the blow of the changes of those nearing retirement following a TUC recommendation) was indeed directly discriminatory.

2. Unconnected reason 

A common misconception is that the Equality Act is designed to create fairness in the workplace. I would certainly be in favour of such legislation but the Equality Act does not meet this need. The Equality Act only protects an employee from unwanted conduct by an employer or its agents  that is related to a protected characteristic. The next defences is rooted in this misconception.

The unconnected reason defence is possibly the most common defence. In an direct discrimination complaint an employee will need to show that there is a protected characteristic engaged and that there has been less favourable treatment compared to a comparator.

If a female employee and male colleague each apply for a promotion but the male colleague is successful in being offered the job then the unsuccessful candidate may well feel she has been directly discriminated against. In this case the protected characteristic (sex) and the less favourable treatment (the refusal of promotion) are clear. But there is a third step the employee would need to meet, namely that the reason for the unfavourable treatment was because of the her sex.

An employer faced with such a claim would likely want to argue that while the employee certainly was treated less favourably this had nothing to do with her sex. Instead, it is because the male candidate was simply better suited to the job for reasons unconnected with the protected characteristic, for example he has performed the same role for a competitor and so has better experience. If they can persuade a tribunal that this different reason was the reason for the treatment then the complaint will be unfounded.

This defence can also have a more sinister side. Even if an employee is treated less favourably for an unreasonable  reason this will not be actionable so long as that reason is connected to a protected characteristic. So, to return to the hypothetical example above, if while driving to the interview the unsuccessful candidate unknowingly cut up the interviewing manager causing an accident, and the manager recognised the employee as the culprit and decided to appoint the other candidate in a pique of revenge then that too would be a defence and make the claim unactionable if a tribunal were to accept that account.

In either scenario if the reason for the treatment is unconnected to the protected characteristic then the employer will be able to defeat any direct discrimination claim.

3. Equally Bad

The second way unfairness is beside the point in a direct discrimination defence is by way of what is colloquially called the bastard defence.

Remember, one of the components of a direct discrimination complaint is that because of a protected characteristic an employee has been treated less favourably (i.e., worse) because of that protected characteristic.

Consider the following hypothetical defence statement:

“The truth of the matter is that we are very bad employers. We work our workers to the bone, disregard all health and safety regulations, we always pay our workers late as that delay generates extra income for the company and we will dismiss anyone who talks about raising a complaint or of unionising; we accept unreservedly that our treatment of the claimant has been reprehensible and even unlawful. However, that treatment has no relation whatsoever to the claimed protected characteristic – the reality is we are an equal opportunities employer in that we treat every worker, whatever their background, equally poorly.”

The defence is certainly not going to win the employer any Public Relations awards and may well leave an employer open to other legal claims but insofar as a direct discrimination claim goes if the tribunal accepts that the employer really does treat everyone equally poorly then (with the exception of certain maternity/pregnancy complaint) the employer is likely to successfully defeat any direct discrimination complaint.

It is arguable that this applies even when the conduct complained of does relate to a protected characteristic. For example, to slightly alter the facts of a 2001 Employment Tribunal  case, suppose a Jewish employee was required (with other colleagues who did not share the same protected characteristic) to wear a Nazi uniform. This is manifestly offensive, unfair, and derogatory conduct that has no basis in any workplace but, on a direct discrimination front, it is arguable that the employer’s defence that this was applied to everyone equally may well be successful because the employee was treated the same as the other employees who did not share that protected characteristic.

Thankfully, were such a situation to arise again the fact there is now no need for a comparator in harassment cases mean if direct discrimination is not available a claim could be pursued on harassment grounds under section 26 of the Equality Act 2010, or even fashioned as an indirect discrimination complaint.

4. Occupationally required

This is not common but Schedule 9, part 1(1) of the Equality Act allows the discrimination to occur where a job holder needs to be of a certain protected characteristic. In such case the proportionate means of achieving a legitimate aim test is used to assess whether this requirement is reasonable. This is rarely appropriate but could be seen as reasonable in situations such as where a rape victim advisory role is required to be female or where a church’s outreach worker must share the faith of the employer (i.e a Methodist outreach worker should be a Methodist).

5. Disability

In a similar manner the Equality Act places an obligation to make adjustments for disabled workers to avoid or mitigate any disadvantage arising from their disability. This requirement has been found to include, in certain circumstances, an obligation to treat the employee more favourably than their peers.

Because in direct discrimination there is now no need to show that the reason for the treatment being applied for was because of their protected characteristic but simply because of a protected characteristic an enterprising employee who had not been given, for example, a reduced caseload when his disabled colleague had as a reasonable adjustment could claim he was being directly discriminated. The argument would be that he was being treated less favourable (higher workload) than his colleague because of disability (namely his colleague’s disability) .

Fortunately section 13(3) of the Equality Act 2010 specifies that if “the protected characteristic is disability, and B is not a disabled person, A does not discriminate against B only because A treats or would treat disabled persons more favourably than A treats B.” The result of someone who is not disabled is being treated less favourably than a disabled person because of disability then that will mean the employee will have no claim.

6. No Shifting Burden

Along with the unconnected reason defense this is the most important and common defence. In an earlier post I outlined the burden of proof test in direct discrimination cases that is found in section 136 of the Equality Act. If a claimant cannot satisfy this test then, simply put, the employer will successfully defend the case and there will be no finding of discrimination.

In practice this means that the employee must be able to bring to the tribunal evidence that, in the absence of any other explanation, the less favourable treatment was because of the protected characteristic.  For the employee this is frequently a very difficult task as employers are unlikely to want to volunteer information that would show that the reason for their treatment is related to a protected characteristic.

It will very often be that the employer’s best chance of defeating a claim is to argue that the employee has not shown evidence that points to the reason for the conduct complained of being because of the protected characteristic and so the employer has no case to answer.

7. No material causation

The seventh reason is not common but is a strategy that minimises the significance of conduct that is related to a protected characteristic. In an earlier post causation in direct discrimination was discussed and the case of Nagarajan was considered.  In Nagarajan the House of Lords recognised that decisions are often made for multiple rather than just one reason and that in terms of direct discrimination claims the fact that, for example, a decision was made for one reasonable reason and one prohibited reason caused by a protected characteristic is sufficient to establish that the decision was because of a protected characteristic. This is a helpful decision that makes it more difficult for employers to cover discriminatory conduct under a blanket of reasonable business reasons.

However,  Nagarajan still allowed a decision that is tainted by discrimination to avoid liability for direct discrimination. To recall, the relevant passage of the decision in Nagarajan (which was a race discrimination case) is “Discrimination may be on racial grounds even though it is not the sole ground for the decision. A variety of phrases, with different shades of meaning, have been used to explain how the legislation applies in such cases: discrimination requires that racial grounds were a cause, the activating cause, a substantial and effective cause, a substantial reason, an important factor. No one phrase is obviously preferable to all others, although in the application of this legislation legalistic phrases, as well as subtle distinctions, are better avoided so far as possible. If racial grounds or protected acts had a significant influence on the outcome, discrimination is made out.”

If a protected characteristic were established as a reason for less favourable treatment but not as one that had a significant influence on the outcome then the appear may have a defence on this basis. For example, a racist manager would have dismissed a worker for proven misconduct but, the fact that the employee is black, meant that the manager found this a much easier decision than would otherwise have been the case even though the outcome is the same. This is in effect a different angle on the bastard defence.

Given the purpose of the legislation is to combat discriminatory conduct in UK workplaces it is an interesting question whether this approach, which effectively does not prohibit prejudicial conduct in employment situations so long as they have limited practical effect, is the right course of action rather than, as is the case in indirect discrimination cases (see Lady Hale’s judgement in Essop v Home Office) allowing nominal or no damages in cases where the the discriminatory conduct had no affect on the claimant. The latter having the advantage of at least marking out discrimination as an unlawful act.

8. Isolated occurrences

It is frequently the case that in direct discrimination cases an employee will complain of a series of issues whereby they allege they have been treated less favourably.

For example, a claimant may allege that

  • On 5 January 2019 she was given a poor performance review by her manager and this was because she was disabled
  • On 6 February 2019 she was given accused of misconduct by a company director and he initiated a misconduct investigation. She does not believe the misconduct investigation would have happened if she were not Black.
  • On 30 April 2019 she is dismissed for misconduct by the company director. She does not believe the misconduct investigation would have happened if she were not Black.
  • On 5 May 2019 HR refused her an employment reference, again she believes this is because  she is black.

As in most employment tribunal claims a claim for must be initiated within three months of the think being complained of. If on 6 May 2019 the claimant begins Employment Tribunal  proceedings only two of the four claims would be within three months and it is likely the employer would seek to strike out the first two claims (because they occurred before 7 February 2019). This is of course a frequent and in my view perverse consequence of UK employment law in that an employee, even if they are trying to resolve issues with the employer, must initiate a claim within three months to guarantee their claim will be considered.

An employee can of course argue that it is just and equitable for all the claims to be heard but this is at the discretion of the employment judge and is far from guaranteed. In this scenario an employee would be likely to argue that section 123(3) comes to their aid. This provides that when conduct continues over a period of time all the issues can be raised so long as the last incidence was within three months. However, the law on continuing act is complex and will consider the extent to which all the events are related, who was involved, whether they are all related to the same claim type.

For the employer this often be a major battleground to argue that if not all then as much of the claim is out if time and not part of a continuing act and by doing so exclude as much of the claim as possible from being considered. To return to the example above, since the misconduct investigation and dismissal are clearly related  and involve both the same claim and same managers there is a good chance that that will be a continuing act meaning that even though the event occurred 3 months or more before the dismissal it is under section 123(3) treated as still being in time (as was the case recently in Hale v Brighton & Sussex NHS Trust). However, the poor performance review  by a different person for performance issues and because of a different characteristic is likely to be excluded, even if this is a case whereby there is very strong evidence that the claim would succeed.

9. Not Responsible

Sometimes an employee can be subject to outrageous and manifestly discriminatory behaviour even at work or in other contexts that would not have arisen but for their work and yet still find the employer defending a claim against them. This can occur in two types of context.

First, there may be cases where an employee is subject to, for example, racist abuse from a customer or some other person with whom the employer does not have any sort of formal or contractual relationship.  The fact that that conduct occurred at work does not mean that the employer will be liable (although it might be, depending on the circumstances).  This can be seen in the deeply unfair case of Kemeh v MOD [2014]. In a place of work the claimant was subjected to racial abuse by a kitchen worker. However, the kitchen worker was not employed by the MOD but by a subcontractor, Sodexo. The MOD accepted that the abuse had happened, that it was indeed racial, but nevertheless denied liability since they were only liable for their own employees, not other employees even if they provided services to the employer.

Second, Section 109 of the Equality places a significant burden on employer that they will be liable for anything discriminatory done by an employee “in the course of employment”  – effectively this means that anything done by an employee which is discriminatory the employer will be responsible for. Section 109(3) even goes so far as to say that it “does not matter whether that thing is done with the employer’s or principal’s knowledge or approval.” In practice this means nearly everything done by a manager at work will mean as well as they individually being responsible (section 110 of the Equality Act) the employer will also be liable. This has been found to apply even to conduct that occurs outside the workplace in work related social gatherings – see Chief Constable of the Lincolnshire Police v Stubbs [1999].

However, it remains the case that there is a limit and that it is possible for discriminatory issues to arise that would not have occurred but for employment to nevertheless be outside  the course of employment.

10. All reasonable steps

Finally, what the claims about there being no defence to direct discrimination miss is that section 109(4) does in fact provide a complete statutory defence to employers. In Canniffe v East Riding of Yorkshire Council [2000] the EAT set out that an employer relying on this defence must show that they took all steps to prevent their employees engaging in the conduct complained of (for example, publicising equality policies, investigating concerns, and disciplining prior acts of discrimination) and that there were no other reasonable actions the employer could have taken. For the employee facing such a defence it is important to identify where the employer’s conduct feel short of expectations to resist the argument that they did everything reasonable to stop the conduct and, by doing so, ensure the employer will remain liable (important as the employer is more likely to pay any financial remedy than a private individual).

Any more defences, then please let me know.

The duty to make reasonable adjustments

discriminationThe BBC have been reporting that a Belfast women has won a £2,000 disability discrimination after event organisers, Eventsec Ltd, failed to make reasonable adjustments. The case itself, as reported by the BBC (I have not seen the judgement, strikes me as a helpful case with which to explain the duty).

The duty to make adjustments is a very powerful, and in my view under-utilised, right of employees in the workplace. Whether conducting sickness absence, performance, disciplinary, objective setting or a whole host of other meetings and workplace processes the duty to make reasonable adjustments can be a powerful tool to ensure employees are treated fairly.

The facts of the reported case can be summarised quite simply. Kayla Hanna was attending a Red Hot Chilli Peppers concert; Kayla has Type 1 diabetes. This meant that her body did not produce insulin, sometimes there can be a sudden drop in blood sugar (called a hypo) that can be life threatening. For that reason Kayla carried a bottle of Lucozade so if she needed to she could replenish her blood sugars and stay safe.

When she attended the gig she had a bottle of Lucozade to cover this eventuality but was told that there was a policy prohibiting event-goers from taking in bottles. Kayla explained that she needed the bottle because of her diabetes and showed evidence of her diabetes by showing her diabetes tattoo and insulin pack. Eventsec Ltd maintained that the rule applied to everyone and refused to allow Kayla to take the Lucozade with her. Thankfully, it appears that Kayla did not have a hypo attack but nonetheless was anxious for the duration of the concert.

The court found that Eventsec Ltd’s refusal to adapt the ‘strict policy’ was a breach of their duty to make reasonable adjustments and the court awarded £2,000 in compensation. It is, as most reasonable adjustment cases are, quite a simple factual situation. In the rest of this post I want to break the situation down showing the key requirements for when an employer is required legally required to make a reasonable adjustment.

Is there a Disability?

For the requirement to make reasonable adjustment to be engaged an individual must be a disabled person. For Kayla Hanna this was her Type One Diabetes. It practice a disability is manifested as a known medical condition but there is no necessary requirement that a condition be a medical one, and sometimes a medical condition (like diabetes) will not be deemed to be a disability.

The focus on establishing whether a person is not on whether or not a person has a certain condition (except for certain conditions where a person is automatically a disability such as certified visual impairment or cancer) but what effect the condition has on the person’s ability to complete normal day to day activities. Normal day to day activities is a wide ranging concept. This can be seen in the EU case of Ring which defined a disability as “those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.” This could mean sometimes a disabled person cannot do something but it is more commonly the case that they can but it takes more time than it would for a non disabled person. The impairment must be long term to qualify, and long term means something that has lasted or is could well last for 12 months or more.

The fact is that under the Equality Act 2010 a very many people will be likely to be the disabled. For example, in my experience there are not many people on long term sick absence who do not have at least a reasonable argument that they are disabled but the biggest obstacle is people own reluctance to use the label as it is a term with a stigma.  However, adjustments like those found not to have been applied in Kayla are in the main exceedingly straightforward and cost nothing to apply but can make a huge difference to working lives. Whilst for a union rep raising disability is often a defence against management actions that is a sign that something has gone wrong – early identification can instead often avoid those situations arising in the first place.

Does the employer know there is a disability?

One of the difference in reasonable adjustment law in an employment field rather than a provision of services case (such as in Kayla Hanna’s case) is that the for the duty to make adjustment’s to be engaged the employer must know that the employee is disabled – that knowledge can come from being informed by the employee or by ‘constructive knowledge; in most non-employment cases the duty is anticipatory meaning they do not need knowledge of an individual’s disability. However, in Kayla’s case she informed the security officer of the disability, and showed evidence of this and her insulin pack and this would be likely to satisfy the requirement in any case. It is good practice for an employee to inform the employer in writing of the condition, and, as importantly, how this makes certain activities impossible or more difficult.

Is there an arrangement that places a disabled person at a disadvantage because of their disability?

The central plank of the duty to make reasonable adjustments is that the employer has a “provision, criterion or practice” that places the disabled worker at a substantial disadvantage compared to a non-disabled worker. That, at least, is the language used in the Equality Act 2010. In less grandiose terms however the requirement can be summarised as a neutral arrangement or practice of an employer that has harsher consequences on a disabled person, or more specifically, a specific disabled person.

In the  Eventsec Ltd case the company had a policy that was applied equally to all concert-goers: no-one was able to bring in any fizzy drinks or bottles. Legally speaking provision, criterion or practice are distinct, something can be a provision and not be a practice but practically speaking in most cases nothing turns on this. This was a policy that was neutral (it was not aimed at diabetics). However, when applied across the board as it was to Kayla, this had a more severe effect on Kayla as a diabetic than it would have otherwise. For a non-diabetic this may have meant mere inconvenience, or perhaps having to fork out for an overpriced replacement inside the concert venue. However, for  Kayla she was placed at risk of a hypo with no immediate source of raising blood sugar.

The importance of reasonable adjustment law is that a provision, criterion or practice can be found in innumerable circumstances. Alternatively, if there is a physical feature that places an employee at a disadvantage this will also engage the duty to make a reasonable adjustment;. A simple example of this would be a job applicant who uses a wheelchair who is invited to a job interview on the first floor but there is no lift available and just a flight of stairs which the applicant cannot ascend.

Is there an adjustment that might work?

The fourth aspect is the question of whether there is an adjustment that the employer could make that removes or mitigates the disadvantage caused by the provision, criterion or practice. For Kayla Hanna the disadvantage caused by the policy against drinks being brought into the concert could have been addressed either by dis-applying the policy in the case of disability or, as the court also suggested, bottles of Lucozade could have been given to disabled ticket holders.

A reasonable adjustment need to be guaranteed to succeed, all that is required is that there is something that could work. This means that the oft cited reason by workplace managers that an adjustment cannot be made as there is no guarantee of success is false.

Also, unlike most other types of discrimination law the law on reasonable adjustments recognises that sometimes an employer is required positively discriminate and treat disabled person more favourably. This was famously set out by the House of Lords in the case of a very important case of Archibald: “The duty to make adjustments may require the employer to treat a disabled person more favourably to remove the disadvantage which is attributable to the disability. This necessarily entails a measure of positive discrimination.”

So, to give a common example, if an employer has a policy on convening disciplinary hearings after a certain number of sickness absences and an employee is more likely to be absent for disability related reasons then it will often be a reasonable adjustment to all an employee more days sickness absence before they start disciplinary proceedings than they would otherwise.

Is the adjustment reasonable? 

The last requirement is whether in all the circumstances of the case the adjustment is reasonable – this is a high hurdle to reach. Factors that are considered are cost, health and safety of staff, impact on operational effectiveness. However, it will be very rare where a person is at a substantial disadvantage for not adjustments to be possible. As was stated by the Employment Appeal Tribunal in Dyer v London Ambulance NHS Trust (2014) “It will be rare, though plainly possible, for there to be circumstances in which no reasonable adjustment can be made. Tribunals should think long and hard before concluding this.”

 

Around the Unions

hedley

RMT

Yesterday, whilst attending a counter-protest to the Free Tommy Robinson brigade (apparently you can be convicted twice of contempt and even plead guilty and it is still a ‘fit up) RMT Assistant General Secretary Steve Hedley was, according to Hedley, assaulted by right wing thugs. Guardian story is here.

CWU 

Martin Henwood was a Swansea postman of 32 years standing when in May he was dismissed by the Post Office, this was because he allegedly failed too follow the correct protocol for unaddressed mail despite the fact he followed existing and established local procedures. His union colleagues in Swansea balloted for strike action and received an 89.9% yes vote. After multiple refusals to review the decision to dismiss and before a day of strike action had been taken Martin has been reinstated. CWU post is here.

PCS, FDA and Prospect

As part of the negotiating mechanism with recognised Trade Unions on civil service pay the Cabinet Office had committed to at least two consultation meetings. However, for Cabinet Office and Treasury ministers their word was not their bond and a pay framework was unilaterally released to all civil service departments. In a rare moment of concord PCS, FDA and Prospect have issued a joint statement on the “shambolic and contemptible” consultation process and called for the Pay guidance to be withdrawn.

PCS are pressing on with a ballot for industrial action on the civil service pay, it will be interesting to see where the other two unions end up given the intransigent position of the employers. The joint statement is here.

Bectu

A Croydon Employment Tribunal has ruled that 2 BECTU reps and former employees at the Picturehouse Cinemas Ltd were unfairly dismissed for alleged misconduct related to strike activities. Interestingly however the claim of automatic unfair dismissal was lost and it will be interesting to see if an appeal on that decision is pursued. BECTU post explaining the decision is here.

Pimlico Plumbers Visit the Supreme Court

supreme courtIt is only less than two months since Don Lane, a worker for courier firm DPD, died after DPD fined him £150 for having the audacity of attending a necessary hospital appointment.  As a ‘self-employed’ worker workers like Lane have very few effectively no employment rights. For example, fining a worker for attending a disability related medical consultation is potentially disability discrimination but could such a person make such a claim?

A firm such as DPD would probably, as Pimlico Plumbers did in the case that started in the Supreme Court today, say no and the basis of the of that denial is section 83(2)(a) of the Equality Act 2010 which states that a person may make a claim for discrimination if they are in “employment under a contract of employment … or a contract personally to do work”. Since many alleged self-employed workers do have a right of substitution – the ability to ask someone else to do the work (a substitute) – they do not have a contract to personally to do work and therefore they are unable to bring a claim for discrimination. The facts underlying the Pimlico case are worth repeating and bare more than a passing  resemblance to the tragedy that faced Don Lane.

Mr Smith had worked for Pimlico for a few years as a plumber but had a heart attack. He wanted to reduce his hours of work but after making a request to do so which was refused Mr Smith was dismissed. He made a claim for unfair dismissal (which was struck out as he was not an employee), unpaid holiday pay as a worker (under EU law) and discrimination. The ET, EAT and Court of Appeal all found in favour of Mr Smith on the worker and s.83 points but it is this the Mr Charlie Mullin is challenging.

Whilst the judgement on worker status will be important it is the decision of standing to bring claims under the Equality Act that is most important and potentially far reaching.

The law on employment status in the UK is a farce with Parliament mandating that those with the most tenuous status having the least statutory rights to protect them from unscrupulous and domineering ’employers’ whilst employees  who tend to me more secure in employment having the most.

Mr Mullins is doing the media rounds on how the case is different from Uber and his position is common sense but the bottom line is his argument is that workers like Mr Smith who have a claim they have been discriminated against and have had their livelihood’s destroyed should  have no right to claim discrimination at all. That is not common sense, that is naked exploitation.

It is Parliament that have allowed this joke of employment rights (non)protection where the most vulnerable workers are given the lowest level of protection and right of redress to remain in place for so many years and, for all the noises, I do not see that the Taylor Reforms will make any real difference.

I hope that the Supreme Court has the sense to ensure that the attempt of Mullins, who will have every rogue employer in the country rooting for him, to remove most gig economy and self employed workers from the protection of UK anti-discrimination law fails.

Don’t Assume, Read.

Letters, especially letters based on pre-written templates in an employer’s HR policies frequently look and read the same. So much so that there is sometimes a temptation to assume we know what is written in the letter without needing to read the whole thing. There is a danger though for trade union reps that that that assumption leads us to miss vital information.

Let me give an example. I have recently been assisting an employee who had previously been given a final written warning for misconduct. He was alleged to have committed further misconduct which was found proven and so because of that further misconduct whilst still on a warning he was dismissed for repeated misconduct, even though the misconduct was stated to be minor. It is common knowledge that where a employee is dismissed for repeated misconduct then, since there has been no fundamental breach of contract, the employee is still entitled to any contractual notice pay; in this case this amounted to over thirteen week’s wages. The manager however decided he did not want to give this and so dismissed the employee without any notice pay. After reading the ‘juicy’ bits of the letter a few times it was only when I read the ‘boring bits’ that I assumed were just a copy and paste job that this decision (I am not sure it was an ‘error’) was identified.

This is not an isolated occurrence. I fairly regularly (maybe 1 in 30 letters?) find reading ‘standard’ letters which have been drafted to ensure the employer complies with the law have been changed by a local manager that when pushed places the employer in legal difficulties and helps protect the employment of union members.  And yet, even knowing that, caseloads and the familiar look of letters still prove a temptation to me when seeing this letters gloss over the contents assuming they say what policy tells them to say. And so, this post is written simply as a useful tip to union reps when receiving letters make sure you read the whole thing from beginning to end – sometimes this can make a huge positive difference to a case.

What is a month?

When an prospective claimant has received an Early Conciliation certificate from ACAS enabling them to proceed to lodging a claim time limit is extended by a minimum of one month. This provision is set out in section 207B of the Employment Rights Act 1996 which states.

But what is a “month” in respect to the limitation period for initiating the claim? Is it a the same date in the next month, a set period of 30 days or something else? The EAT in Tanveer v East London Bus & Coach Company Ltd has settled any doubt and found the correct interpretation is the corresponding date in the following month.

The actual details of the case are slightly more complex than the below suggests since it involved two separate Early Conciliation certificates and, in my view, also a potential negligence claim against the claimant’s solicitors.

However, for the purposes of the case the summary is a simple one. The claimant was dismissed on 20 March 2015 and within the relevant period contacted ACAS and the respondent agreed to early conciliation which in the event was unsuccessful. On 30 June 2015 an Early Conciliation certificate was issued and unfair dismissal proceedings were started on 31 July 2015 due to a mistake by the claimant’s solicitor. The question in this case was what day was day one in the case and what day did the month expire. For example, was day one the 30th June (the day it was issued) or 1 July (the next working day). The claimant argued for the latter but this was firmly rejected on the basis of the House of Lords’ decision in Dodds v Walker which applied a corresponding date principle.

What the case means is that if working out the deadline for a claim then one calendar month absolute latest date a claim must be issued is the corresponding date in the following month. Therefore, if a certificate were to be issued today (20 April) any unfair dismissal claim must be submitted by 20 May at the latest.

This case however highlights other good practice points for employee representatives and prospective claimants:

  1. Double check the work of solicitors on time limits, don’t just assume they are correct.
  2. Don’t leave claims the the last minute. In my own case whenever pursuing claim on behalf of union members I always aim to submit the claim 7 calendar days before an actual deadline to ensure any miscalculations do not affect a claim.

 

Cases referenced:

Tanveer v East London Bus & Coach Company Ltd [2016] UKEAT 0022_16_0802