Gordons Employment Update - 10 October 2019

Vegetarianism Is Not A Protected Characteristic

In Conisbee v Crossley Farm, the Employment Tribunal considered whether vegetarianism is a  protected characteristic.

The Equality Act 2010 provides protection against discrimination on the grounds of religion or belief. This includes any religious belief, any philosophical belief or a lack of belief.

Mr Conisbee’s position was that he should be afforded protection against discrimination relating to his belief in vegetarianism, on the grounds that such views amounted to a philosophical belief.

Decision and comment

Whilst the Employment Tribunal accepted Mr Conisbee’s genuine belief in vegetarianism, it held that vegetarianism is not a philosophical belief. This was because Mr Conisbee’s belief, as expressed, was not about human life and was simply a lifestyle choice. It also lacked the necessary cogency and cohesion to amount to a philosophical belief, as there are a wide range of reasons for becoming a vegetarian. Vegetarianism is therefore not a protected characteristic under the Equality Act 2010.

It should be noted that this is a first instance decision and therefore does not bind future Tribunals to make the same decision on a similar set of facts. It is not known at this stage whether Mr Conisbee will appeal the decision. The Judge also commented that veganism does likely demonstrate many of the characteristics required to amount to a philosophical belief.

Employers should keep an eye on this quickly evolving area of the law. There are upcoming appeals dealing with similar issues to the Conisbee case. The Employment Appeal Tribunal is due to hear Casamitjiana v League Against Cruel Sports, in which it will consider if ethical veganism amounts to a  philosophical belief. In the Court of Appeal case of Gray v Mulberry Company (Design) Ltd, the Claimant avers that belief in the “statutory human or moral right to own the copyright and moral rights of her own creative works and output” should be a protected characteristic.

Both cases should provide further guidance on what does and does not amount to a philosophical belief and thus be a protected characteristic for the purposes of the Equality Act.

Brexit Preparations For Employers

Whilst the political situation remains uncertain in the lead up to Brexit, HM Government has updated its website with suggested steps for both individuals and companies to take in preparation for the UK’s exit from the EU.

Access to the Government’s advice has been streamlined via an interactive Q&A, which can be found here.  The available advice includes further information about the EU Settlement Scheme for those employers who employ EU nationals. Much of the advice  remains subject to the result of negotiations and whether the UK exits on a ‘no-deal’ basis.

For bespoke advice on the impact of Brexit on your workforce, please get in touch with one of our employment lawyers.

Harassment In The Workplace

The Employment Appeal Tribunal, in the case of Raj v Capita Business Services Ltd & another, considered if a female manager massaging the shoulders of a male subordinate on a number of occasions in an open plan office amounted to harassment.

Mr Raj made a number of claims following dismissal on performance grounds. His claims included;

1. that he had been subject to unwanted conduct of a sexual nature which had the purpose or effect of violating his dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment.
2. that he had been subject to unwanted conduct relating to his gender, which had the purpose or effect of violating his dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment.

At the first instance Tribunal hearing, both of the above claims were dismissed: the first on the grounds that, whilst the conduct may have been unwanted, it was not consistent with sexual behaviour; the second was dismissed on the basis that the conduct was not related to his gender. Mr Raj made an appeal regarding the second claim on the basis that the Tribunal had made an error in applying the law.

Decision and comment

The Employment Appeal Tribunal dismissed Mr Raj’s appeal. It held that Mr Raj had failed to show that the unwanted conduct related to his gender and that the Respondents had provided evidence that the unwanted conduct was “misguided encouragement” and therefore was unrelated to Mr Raj’s gender.

When dealing with any allegations of harassment, it is important  that the full facts and circumstances surrounding any allegations are established. Even when dealing with what may appear to be fairly innocuous interactions in the workplace, employers should ensure a thorough investigation takes place to establish whether there are grounds for a successful claim of harassment or not.

Employers can be found vicariously liable for the actions of their employees in instances of harassment, unless it can be shown that all reasonable steps were taken before the act to prevent it. In order to rely on this defence employers should hold regular training on conduct in the workplace and have clear polices which set out that harassment will not be tolerated.

If you want to discuss any of the issues in this update, please get in touch with us.