People law in brief - April 2011

Focuspoint

What is a protected religion, religious or philosophical belief?

The main limitation on what constitutes a religion is that there must be a clear structure and belief system. This would therefore include Baha’i faith, Buddhism, Christianity, Hinduism, Islam, Judaism, Rastafarianism, Sikhism, Druidism and the Church of Scientology. When the Equality Act was going through Parliament it was proposed that it should be made clear that protection does not extend to a cult. This did not, however, find its way into the Equality Act although it seems that the intention is not to give protection to inappropriate groups whose activities would give cause for concern.

The difficulty is that an individual’s belief is subjective and can vary from person to person. It follows therefore that each case will, to a large extent, fall on its own facts. Generally speaking, case law has shown that protection would extend to:

• A belief in the sanctity of life, including the lives of animalsHashman v Milton Park (Dorset) Ltd t/a Orchard Park - ET). This was demonstrated by the Claimant’s fervent opposition to fox hunting and hare coursing.
• A belief which is genuinely held, is a substantial aspect of the Claimant’s human life and behaviours, has a certain level of cogency, seriousness, cohesion and importance and has a similar status of cogency to a religious belief.  This meant that a Claimant’s belief in climate change was protected (Granger plc and ors v Nicholson UKEAT/0219/09). The Claimant believed that “mankind was heading towards a catastrophic climate change and therefore we are all under a moral duty to lead our lives in a manner which mitigates or avoids this catastrophe for the benefit of future generations and to persuade others to do the same”. His beliefs affected many aspects of his life including his choice of home, how he travelled and what he bought.  His actions and thoughts were not a one off, they formed a system of beliefs which he genuinely lead his life by and which were worthy of respect in a democratic society.
• A belief that mediums communicate with the dead (Power v Greater Manchester Police Authority UKEAT 0434/09).
• Whilst support of a political party is not a protected belief (Kelly and others v Unison – ET), a belief in a political doctrine such as socialism might be.
• A belief in high purpose of public service broadcastingto encourage debate (Maistry v BBC – ET).  This was despite the belief being the same public aim as the employer.
• A clear belief system, not just an opinion or viewpoint. In McClintock v Department of Constitutional Affairs 2008 IRLR 29 the Claimant’s objection to the adoption of children by same sex couples was not a “belief” and merely an opinion. Also, in a first instance case of Finnon v Asda Stores Ltd, the Tribunal refused to accept that a BNP member was protected because British Nationalism did not involve a clear belief system.
• A belief worthy of respect and not incompatible with human dignity and not conflicting with the fundamental rights of others. An example of a belief which might not be protected is Nazism or fascism (Finnon v Asda Stores Ltd – ET).

Inappropriate conduct relating to an individual’s protected religion or belief – unlawful discrimination?

There have been a number of cases where the alleged detriment for discrimination on grounds of religion or belief arose because the employer tried to prevent or deter an individual’s activities at work which relate to his/her belief. Case law is clear that there is no less favourable treatment (for discrimination purposes) to the extent that the detriment (e.g. disciplinary action) occurs because the individual is conducting himself/herself contrary to the employer’s policy or because he/she has manifested their belief in an inappropriate or unacceptable way, having regard to the rights of others. For example:

• distributing DVD’s and posters relating to his work in the psychic field to other police forces was contrary to policy and deemed unacceptable behaviour (Power)
• evangelising at work (Monaghan v Leicester YMCA ET ) 
• inappropriately promoting Christianity to service users (Chondol v Liverpool City Council UKEAT/0298/08)

The point here is that the reason for the detriment is the individual’s conduct not their belief.  Practically, the strength of defending any such claims (if the belief is protected) is that there is a clear explanation that less favourable treatment is for conduct rather than the belief itself and that, if there is a policy which might put persons with a certain belief at a significant disadvantage, the policy can be justified.

Without doubt, it is a difficult area and any grievances or disciplinary issues must be managed with the utmost care. Should you have any concerns or questions at any time, please contact a member of the team.

Briefcase news

• Eversheds Legal Services v De Belin UKEAT/0352/10, the EAT has upheld a Tribunal’s decision that a law firm discriminated against a male lawyer on the grounds of sex when it inflated the redundancy score of a female colleague on maternity leave.  The score related to “lock up” (how quickly bills are paid in a relevant period). This case is a good reminder that whilst employers cannot treat women on maternity leave less favourable than male colleagues, this does not entitle it to act in such a way that they are in a more advantageous position than they would have been in, had they been at work.  The employer must only do what is reasonably necessary to remove the disadvantage that has arisen as a consequence of their pregnancy. In this case the female’s actual score for lock up was not accurate due to being on maternity leave for some of the relevant period.  The employer decided to enhance the female employee’s lock up score to the maximum, whilst confining the male to his actual score.  This was held not a proportionate means of removing the disadvantage which the female suffered.  A proportionate alternative (which wouldn’t have amounted to sex discrimination) would have been for both employees’ actual performance, during the period before the woman went on maternity leave, to have been used in the scoring of the selection criteria.
• Are you ever faced with a disciplinary investigation where you believe in an employee’s misconduct but cannot prove it?  The recent case of Orr v Milton Keynes Council (2011) EWCA Civ 62 confirms that when an employment tribunal is considering whether an employer has acted reasonably in dismissing an employee for misconduct, the employer cannot be held to know all the facts (even if they are known to others but withheld from the decision maker). In this case Mr Orr was dismissed due to his abusive conduct towards a manager. He did not turn up for the hearing. In his tribunal claim for unfair dismissal, Mr Orr alleged that it was unfair to dismiss him because he had only been responding to racial comments which had been made to him by his manager.  This had not been known by the employer at the point of dismissal.   Of course, employers cannot avoid discovering information that they didn’t want to by not conducting a thorough and fair investigation as a tribunal will consider whether such knowledge could have been reasonably obtained if there had been a thorough investigation.  If it could, this would normally lead to an unfair dismissal.  In Mr Orr’s case, if he had attended the disciplinary hearing, the employer would have been aware of the explanations for his conduct and would have been under a duty to then consider this in determining whether dismissal was a fair sanction.

Watch this space

The Bribery Act 2010 was due to come into force on 1 April 2011, however, this was postponed because the guidance note (which will accompany the legislation to assist companies put measures in place to understand their obligations) was delayed.

The guidance has now been released and the Bribery Act 2010 will now come into force on 11 July 2011. In next month’s People Law In Brief we will explain what the Bribery Act 2010 means for your business and what you need to do to be compliant with the legislation. The Act creates several new offences and carries a maximum penalty of 10 years imprisonment or an unlimited fine, for which employees, directors and commercial organisations can be liable. All in all this means you can’t afford to miss next month’s addition of People Law In Brief!

And Finally

• From 11 April 2011 the statutory maternity allowance has increased from £124.88 to £128.73. Employers should update their maternity policy to provide for the new statutory rate
• Red Tape Challenge – it was briefly mentioned in last month’s People Law In Brief that the Government planned to launch its ‘Red Tape Challenge’ website. This has now gone live and involves businesses and members of the public voting for regulations which they think should be scrapped. The aim of this challenge is to examine over 21,000 statutory rules and regulations which are in force in the UK and which the Government considers may place the biggest burdens on business and society. Respondents will be able to say what’s working and what’s not, what could be simplified and what needs scrapping all together! The Government will then have 3 months to decide which regulations will be scrapped. The aim of this being that the burdensome regulations will go, unless the Government can justify why the regulation is needed.  Please see www.redtapechallenge.cabinetoffice.gov.uk/home/index/ for more information.