Employment Law Update February 2020
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.
Parental bereavement leave
The government has announced that parents will be entitled to bereavement leave from 6 April 2020 (subject to parliamentary approval). Employees who lose a child under the age of 18, or who suffer a stillbirth from 24 weeks of pregnancy, will be entitled to two weeks’ leave. This leave can be taken in one block or as two separate weeks. This is a ‘day one’ right, with no need for a period of continuous employment to qualify for it.
Employees who have been employed for at least 26 weeks and whose average earnings exceed the lower earnings limit (currently £118 for 2019/2020) will also qualify for statutory parental bereavement pay (SPBP). SPBP will be calculated in the same way as paternity pay, which is £148.68 for 2019/2020, or 90 per cent of average weekly earnings if that is lower. Although many parents may choose to take this leave immediately after the death of a child, the regulations are likely to give parents up to a year to take this leave.
This right is the most generous in the world in relation to child bereavement, with only a few countries offering any bereavement leave at all. Most employers are already compassionate and flexible when an employee suffers such a devastating loss. The law is simply catching up with good practice.
A fair dismissal must be preceded by a reasonable investigation, to establish the facts of the case. The ACAS code says that the investigation might involve an investigation meeting but will sometimes involve the collection of evidence for use at the disciplinary hearing instead. The Employment Appeal Tribunal in Sunshine Hotels v Goddard has analysed what a reasonable investigation looks like.
The employee was accused of sleeping whilst on duty at the hotel. He was suspended pending an investigation. The investigation involved the manager watching CCTV footage of the hotel. The employee was sent a letter inviting him to an investigation meeting on 16 April, saying there would be a disciplinary hearing if there was any substance to the allegations. The 16 April meeting turned out to be a disciplinary hearing at which the employee was dismissed. The employment tribunal said the dismissal was unfair because there had not been a proper investigation. The employer appealed because the employment tribunal appeared to suggest that a separate investigation hearing was required in every case for a dismissal to be fair.
The Employment Appeal Tribunal dismissed the appeal. The tribunal’s decision was based on the lack of a proper investigation overall, rather than the lack of an investigation meeting. Looking at the CCTV wasn’t enough investigation. The employer could have walked the usual patrol route with the employee to see whether it naturally bypassed CCTV as the employee alleged. Whether that investigation took place by way of a meeting or another method was irrelevant, but neither were done in this case. The employee didn’t know enough about the allegations at the outset of the disciplinary hearing to defend himself properly, not least because he thought he was attending was an investigation rather than a disciplinary hearing.
This case confirms that an investigation meeting is not always required, but an adequate investigation is. Employers must ensure that they gather all the relevant facts before any disciplinary hearing. In cases such as this, where someone is accused of misconduct and offers an explanation, those explanations should be investigated before any disciplinary hearing takes place.
An employment tribunal has recently looked at indirect discrimination and how it applies to dress codes. Indirect discrimination is where an employer applies a policy or practice to all employees, but which negatively affects a particular group who share a protected characteristic (as well as the individual employee). The employer can defend an indirect discrimination claim by showing that the policy is justified as a proportionate means of achieving a legitimate aim.
In Sethi v Elements Personnel Services, the employee was a Sikh who adhered to Kesh, the requirement not to cut body hair. He was seeking work through a temp agency which worked with five-star hotels. The agency had a ‘no beards’ policy, on appearance rather than health and safety grounds, allegedly due to client demands. When he was told that he would not be given work unless he cut his beard, he brought an indirect discrimination claim.
The employment tribunal said that the ‘no beards’ policy which applied to everyone placed Sikhs in general, and the employee in particular, at a disadvantage. They said that the agency’s aim of meeting client demands was a legitimate one. However, the blanket ban was not a proportionate means of achieving the aim. Instead, the agency should have put the employee on the books and sought specific exceptions based on his Sikh religion as and when required. The agency hadn’t even asked its clients whether they would make an exception for a Sikh worker. Not all the hotels had a no beard requirement anyway. The agency had indirectly discriminated against the employee.
Although this case doesn’t create new law, and isn’t binding on other employers, it is an important reminder about the potential pitfalls of dress and appearance codes. Employers must ensure that dress codes or appearance policies do not negatively impact on people who share particular characteristics in a way that cannot be justified.
Unfair dismissal – suspension
Many employers automatically suspend an employee accused of misconduct while they investigate the allegations. Many employees don’t object. The employee in Harrison v Barking, Havering and Redbridge NHS Trust did object and brought a claim in the High Court to stop what she said was an unfair suspension.
The employee was Deputy Head of Legal Services. She was suspended from work due to allegations about her handling of a clinical negligence case. She wasn’t provided with the details and ended up going off sick with stress. The employer asked her to return to work on restricted duties. When she refused, she was suspended for failing to follow a management instruction. The employee brought a court claim for an injunction to stop the suspension and return to most of her normal duties. She said the employer’s behaviour in suspending her breached the duty of mutual trust and confidence.
The High Court granted the injunction. There were strong grounds for arguing that the suspension breached mutual trust and confidence because there was no reasonable or proper cause for suspending her from most of her duties. The employer’s arguments purporting to justify suspension – namely criticisms of the employee’s work – came after the decision to suspend rather than before and no evidence had been provided.
Injunction proceedings are rare in employment cases. However, this case is a reminder that knee-jerk suspension decisions can come back to bite an employer. ACAS recommends that suspension should only happen in misconduct cases when the allegation is serious and when there has been a severe breakdown of the working relationship, or there is some other risk, such as the employee interfering with evidence or witnesses. Employers should always consider other options first, such as a temporary team move or different hours of work.
Employers must protect their workers from discrimination and harassment. An employer will be legally liable for harassment at work if they have not taken reasonable steps to prevent it. The Equality and Human Rights Commission has published some technical guidance on sexual harassment and harassment at work.
The guide is quite long at 84 pages but is very readable. It takes the reader though the legal definitions of harassment in relation to a range of protected characteristics such as race, age and sex. The section on harassment (section 2) is particularly helpful at demonstrating what harassment can look like at work. The guide also covers victimisation, the legal claim an employee can bring if they are treated badly by an employer after raising allegations of discrimination or harassment. Victimisation can play a role in employees not reporting harassment. The guide contains helpful examples, some of which are based on real cases.
The most useful part of the guide for employers is section 5 which sets out how to prevent and respond to harassment as an employer. It takes a tour through the importance of policies and procedures, including helpful guidance on what a good policy should contain. It also contains guidance on detecting harassment, assessing risks relating to harassment in the individual workplace and responding to harassment allegations when they are made. Read the guidance here:
National minimum wage
You may remember that the Low Pay Commission reported to government back in Autumn 2019 and recommended increases to the national minimum wage and national living wage. The national living wage is the minimum pay required for workers who are aged 25 and older. It is a legal requirement to pay the national living wage where it applies rather than a choice.
From April 2020, these changes to minimum hourly rates will come into effect:
- NLW for workers age 25 and over – from £8.21 to £8.72 per hour;
- NMW for workers aged between 21 and 24 – £7.70 to £8.20;
- NMW for 18-20 year olds – £6.15 to £6.45;
- NMW for 16 and 17 year olds £4.35 to 4.55;
The NLW is expected to rise to £10.50 per hour by 2024. There are also plans to reduce the age at which the NLW applies from 25 to 23 by 2021, and to 21 within 5 years.
These pay rises, all of which are well over inflation, will add up. They will have a particular impact on small employers, especially in a time of economic uncertainty. The Federation of Small Businesses has said the wage hikes might result in lower recruitment, cancelled investment plans and redundancies. The BBC reports that businesses have urged the government to reduce costs elsewhere. Look out for further developments.
Are you doing enough at work to contribute to your employees’ happiness? In his new book ‘Can we be happier? Evidence and Ethics’, Richard Layard looks at happiness in general in the modern world. He advocates the Happiness Principle, where people should aim to produce the greatest happiness possible and create the least misery. He looks at how employers can play a part in this plan.
Layard quotes a study by Daniel Kahneman which looked at the times of day which are happiest for people. The study found that the worst time of day is when an employee is with their boss. The study also found that most people don’t like their jobs. It’s difficult for employers to change the work that people are employed to do, but Layard says there are things that employers can do to improve happiness among employees:
- Allow workers to influence how work is organised;
- Reward team rather than individual performance;
- Appoint managers who can inspire and lead effectively;
- Run courses on wellbeing;
- Take mental illness seriously, with managers who can spot it and know where to get help.
Employee happiness isn’t the only gain here. Happy employees are likely to be more productive, more willing to go the extra mile for their employer. Greater productivity means greater profit. And that will make employers happy too.
The Equality Act 2010 sets out the law in relation to equal pay. Male and female workers should be paid the same for doing the same job (like work), work which is given the same rating under a job evaluation scheme (rated as equivalent) or work of equal value, unless there is a reason for the pay difference that is not discriminatory. This non-discriminatory explanation is called the ‘material factor defence’. It means that there is something (a material factor) other than discrimination which explains the pay difference. If a man is paid more than a woman doing the same job because the market rate for the job was higher at the time of his recruitment, that might be a material factor defence.
Equal pay has hit the headlines recently. The BBC’s Samira Ahmed won her case for equal pay. The employment tribunal agreed that her work on Newswatch was ‘like work’, or work of equal value, to Jeremy Vine’s job on Points of View. The BBC were unable to show that the difference in pay was due to something other than sex discrimination.
What do high paid BBC executives have to do with small businesses? The BBC equal pay cases are a reminder of how unequal pay between the genders is still a problem, even when the individuals are in plain sight in front of a national audience. The best way to avoid equal pay claims is to have transparent processes for determining pay, with jobs rather than people determining pay rates where at all possible.
Section 47B of the Employment Rights Act 1996 says that an employer must not treat a worker badly (subject them to a detriment) if they have ‘blown the whistle’ on wrongdoing (made a ‘protected disclosure’). In Tiplady v City of Bradford Metropolitan District Council, the Court of Appeal looked at what being treated badly ‘in employment’ means.
The employee was a senior planning officer for the Council. During her employment, she was also in contact with the Council as a householder about sewer issues and building a shed on her property. The employee thought the Council dealt with these issues unreasonably. She resigned and claimed she had been treated badly because she had blown the whistle on the sewer and shed issues.
The employment tribunal said that she could not bring whistleblowing claims under section 47B. She had ‘blown the whistle’ as a householder rather than an employee. Any detriment was levelled at her in a private capacity and not as an employee. (The tribunal didn’t much like the facts either, saying that the detriments either hadn’t happened or were unrelated to a protected disclosure.) The employee appealed. The Employment Appeal Tribunal and the Court of Appeal agreed with the employment tribunal. The question was whether any detriment had been suffered ‘as an employee’. In this case any alleged detriments were levelled at the employee as a householder and not as an employee. She couldn’t bring a claim under section 47B.
This situation will be rare but might be helpful to businesses who provide services to individuals who also work for them. Although detriments in a field other than employment can’t be actioned under s47B, retaliatory treatment should always be avoided in business. It’s better to deal with issues head on rather than trying to dodge them.