Raj v Capita Business Services Ltd & Another
Mr R alleged that his female team leader had sexually harassed him because she had on 2 or 3 occasions given him a shoulder massage. This was rejected by the Employment Tribunal at first instance. Mr R then appealed to the EAT and was unsuccessful. The Employment Appeal Tribunal found the Employment Tribunal had legitimately reached the conclusion that there was no case of harassment related to sex on the face of it. This was due to a number of factors including that as an underlying context to the female team leader’s behaviour, performance issues had led the team leader had tried to encourage his performance and that the incidents had occurred in an open plan office. The EAT also found that even if the burden of proof had shifted to the employer/team leader to provide a non-discriminatory explanation for the conduct, the Employment Tribunal had legitimately found that this had been proved, as the reason for the conduct was “misguided encouragement”. This decision may give employers some comfort that not all unwelcome physical contact will amount to sexual harassment. However, employers should be aware that every case will be judged on its own particular circumstances.
Conisbee v Crossley Farms Ltd & Others
An Employment Tribunal held that vegetarianism was not a philosophical belief qualifying for protection under the Equality Act 2010, applying the established tests. Mr C was employed for approximately 5 months before he resigned. He alleged that he had been discriminated against on the grounds of religion or belief, his belief being vegetarianism. At a Preliminary Hearing to consider this issue ie whether vegetarianism qualified as a philosophical belief, the Tribunal held that although the vegetarian belief was genuinely held by Mr Connisbee and was worthy of the respect in a democratic society, it failed to meet the other legal requirements for protection such as:-
It did not concern a weighty and substantial aspect of human life and behaviour. Vegetarianism is not about human life and behaviour it is a lifestyle choice and in Mr Connisbee’s view he believed the world would be a better place if animals were not killed for food.
It did not attain a certain level of cogency seriousness, cohesion and importance. The reasons why people are vegetarian differs greatly. They adopt the practice for many different reasons which include lifestyle, health, diet, concern about the way animals are reared for food and personal taste. On this aspect the Tribunal contrasted vegetarianism with veganism stating that the reasons for veganism appear to be largely the same and therefore there was a clear cogency and cohesion in vegan belief.
A belief in vegetarianism did not have a similar status for cogency as religious beliefs.
While this decision is only at first instance and is not binding on other Tribunals, it does at least provide an example of how Tribunals are approaching the question of religion or belief claims based on vegetarianism.
Kasongo v Humanscale UK Ltd
In this case, the Claimant said she had been automatically unfairly dismissed and discriminated against on the grounds of pregnancy and maternity. During the course of the hearing, the employer chose to disclose documents containing summaries of legal advice about dismissal because it was said they demonstrated that the employer was unaware that Ms Kasongo was pregnant when it decided to dismiss her. However, the EAT held that the partial disclosure of privileged material (legal advice between Humanscale and their lawyers) caused a waiver of privilege in other documents containing advice about dismissal. In particular, this meant that comments in a draft letter of dismissal which had been redacted before the tribunal (and which the Claimant had somehow managed to see) could be relied on in evidence in hearing the claim.
The case is a reminder of the potential risks of selective disclosure of privileged material as that can mean that any privilege in connection with the same matter is waived. The courts take the view that the partial waiver of privilege could lead to a situation where the employer or claimant was “cherry picking” which bits of evidence the tribunal should be allowed to see and therefore presenting an unbalanced picture of the evidence.
Global Climate Strike
Employers should be planning their position in response to employees who wish to take part in the global climate strike being planned for the end of September. The organisers aim to encourage the workforce to replicate the mass walkouts of school students which have attracted significant publicity and political engagement around the world. Climate change activists backed by Greta Thunberg are calling for a global climate change strike for the week starting on 20 September 2019. The stated purpose is to “show our politicians that business as usual is no longer an option”. There is currently media speculation that as many as 5 million workers in the UK could participate. Organisers hope to galvanise participants from 150 countries to take part.
If you think your business may be affected it may be advisable to decide in advance (and also advise your workforce) what the company’s position with regards to any employees wishing to take part will be. There is clearly no “right” to take time off unless the employer agrees. If that is not your organisation’s position, it may be prudent to explain that to employees in advance and also to explain to them what their options are for taking time off if they wish to participate, e.g. holiday requests, e.g. unpaid time off, e.g. making up hours if time off is taken. You may also wish to emphasise that you do not wish anyone taking part to link their participation with your organisation or alternatively, if you do allow this you may wish to emphasise the standards of behaviour which will be expected of those participating.
Following our update on this last week, the Home Office has recently changed its position on what will happen following its deadline of ending free movement on 31 October 2019 in the event of a no deal Brexit. Whilst the end to freedom of movement will still take place on 31 October, the Government has stated that EEA Nationals can still enter the UK freely post-Brexit and those wanting to remain beyond three months would have to apply for European Temporary Leave to Remain (the details of this have still to be confirmed by the Government). It remains the position that those already in the UK can still apply for settled or pre-settled status. However, given the current political climate, nothing is certain at this stage and it is likely that other changes will take place…watch this space.