Archive for the ‘Employment Law Roundup’ Category

Employment Law Roundup – February 20

Tuesday, February 4th, 2020

Welcome

Everyone’s talking about veganism, and not just because of Veganuary. In January, an employment tribunal found that a vegan was protected from discrimination by the Equality Act 2010. The employee’s ethical veganism met the legal test for a ‘belief’ which, like religion, can be a protected characteristic. In order to qualify for protection, the belief must:

  • be a genuinely held belief rather than an opinion or viewpoint;
  • be about a weighty or substantial aspect of human life;
  • attain a certain level of cogency, seriousness, cohesion and importance;
  • be worthy of respect in a democratic society.

In Casamitjana v The League for Cruel Sports, the employee’s ethical veganism went beyond not eating meat or avoiding animal products. He avoided clothes, shoes and cosmetics containing animal products and sought clarification on ingredients from companies before using them. He walked rather than getting public transport because it was less likely to kill insects. He paid for items using cards or coins because bank notes contain animal products. He worked in animal protection and was heavily involved in animal rights activism. He only dated fellow vegans and did not allow non-vegan items in his home. He shaved using an electric razor powered by certified vegan friendly electricity. Based on these beliefs, the employment tribunal judge said that he was ‘satisfied overwhelmingly’ that ethical veganism was a philosophical belief. The employee can continue with his discrimination claim to fight against his dismissal.

Although this is being referred to as a landmark case, the effects of the decision are limited. Other courts and tribunals don’t have to follow this employment tribunal judgment, as they would an appeal decision. An appeal is unlikely because the employer was prepared to concede the point (the judge rejected that offer and went on to make his own decision). Most importantly though, the employee’s entire life – professional and private – was dedicated to ethical veganism in a more extreme manner than most vegans, even those who describe themselves as ethically vegan. Not all vegans will meet the legal test.

That said, employers need to be aware of the potential for veganism to be a protected characteristic and ensure that employees are respectful of other people’s lifestyle choices. Ribbing a vegan colleague on the content of their packed lunch is probably now off the menu. (more…)

Employment Law Roundup – October 2019

Friday, October 4th, 2019

Harassment has been in the legal news again this month. Anthony harasses Belinda if he does something in relation to a protected characteristic (race, sex etc) which has the purpose or effect of violating Belinda’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her. The connection between the protected characteristic and the conduct is key. The burden of proof – who must prove what – is important in discrimination cases too. If an employee can prove facts from which, in the absence of another explanation, a tribunal could conclude harassment has occurred, then the burden of proof shifts to the employer to show that it did not happen. The Employment Appeal Tribunal (EAT) has looked at both these issues in Raj v Capita Business Services.

The employee was employed for less than a year and had performance issues before he was dismissed. He brought numerous claims against the employer. One claim was for sex harassment, alleging that his female manager had massaged his shoulders in an open plan office. The manager denied that the conduct had taken place, but other witnesses supported the employee’s version of events. They said the massages were accompanied by words of encouragement in relation to the employee’s performance.  (more…)

Employment Law Roundup – September 2019

Tuesday, September 10th, 2019

Welcome article – TUPE

Employers have an obligation under the National Minimum Wage Act 1998 (NMWA) to keep pay records showing that they pay the national minimum wage (NMW). This requirement continues after employment has ended. The Employment Appeal Tribunal has looked recently at what happens when there is a TUPE transfer – does the transferor have to keep and produce those records for employees who have transferred to another employer?

In Mears Homecare v Bradburn, the employees transferred under TUPE. A few months later they requested pay information from their old employer (the transferor) as part of a query about payment of the NMW. The transferor didn’t respond within the time limit and the employees lodged an employment tribunal claim. The tribunal decided that the transferor was the relevant ’employer’ for the purposes of the NMWA. The query about pay related to the employees’ employment with the transferor and the duty to retain and produce pay records lasted beyond the end of employment. The tribunal ordered the transferor to pay compensation.

The Employment Appeal Tribunal disagreed. The employees’ employment had not ended – it had transferred to the transferee. When there is a TUPE transfer, the transferee steps into the shoes of the transferor in relation to the employees’ contracts. All rights, duties and obligations pass from transferor to transferee, including the obligation to keep and produce NMW records. The transferee was therefore the relevant employer, not the transferor. Any request for pay information should be made to the transferee, even though the request was for pay information which pre-dated their employment of the employees.

In this case, the EAT judges accepted that this situation is inconvenient for transferees who are required to produce another business’s pay records. They said that businesses should ensure that full pay records pass from transferor to transferee as part of the transfer. It’s worth remembering that criminal liability does not transfer under TUPE. Transferors should therefore ensure that the contractual paperwork also deals with the return of pay information if the transferor is ever prosecuted in relation to transferred employees. (more…)

Employment Law Roundup – June ’19

Wednesday, June 5th, 2019

Disability discrimination

A disability is a physical or mental impairment which has a substantial and long-term adverse effect on a person’s ability to do day to day things. The Equality Act 2010 specifically excludes from the definition any visual impairment which is correctable by contact lenses or glasses. Sometimes, the correction of visual impairments can create side effects. The Employment Appeal Tribunal has recently looked at whether side effects can stop the impairment being correctable.

In Mart v Assessment Services, the employee brought a claim for disability discrimination based on her diplopia (double vision). She also had a facial disfigurement, which caused depression and anxiety, but she chose to limit her claim to the double vision. She was prescribed a contact lens which corrected the problem. However, the lens visibly blacked out her eye, which the employee said was a disfiguring side effect (disfigurement can also be a disability if it is ‘severe’). The lens also restricted her peripheral vision. For these reasons, the employee said the lens had not corrected her vision and she was therefore disabled. (more…)

Employment Law Roundup – May ’19

Tuesday, May 7th, 2019

Usually, employment law cases are conducted in public and the press may report on them. In cases involving sexual harassment and sexual offences, employment tribunals may grant privacy orders in the interests of justice or to protect people’s privacy under the European Convention on Human Rights (‘ECHR’). Orders can include anonymising the parties, holding hearings in private and restricted reporting orders. In granting these orders, the employment tribunal must properly balance privacy rights against the principle of ‘open justice’.

In A and B v X and Y and Times Newpapers Limited, a household name (Y) was accused of harassment, including alleged sexual offences. A and B brought claims against their employer (X) and Y. The employees were entitled to anonymity under the Sexual Offences (Amendment) Act 1992. They also sought an anonymity order in the employment tribunal. X and Y also asked for anonymity and a restricted reporting order. The employment tribunal refused everyone anonymity. However, they granted a restricted reporting order until after any remedy hearing. The judge said the employees had the equivalent of such an order because of their anonymity under the Sexual Offences Act, and Y should be similarly protected. It would ensure Y remained innocent until proven guilty and guard against misreporting. (more…)