Friday, January 17, 2020

I've Come To Wish You An Unhappy Birthday

The Law Society Gazette reports that a legal secretary has failed in an Employment Tribunal Claim for Age Discrimination and Whistleblowing Detriment after a dispute arose in relation to colleagues marking her 50th birthday.

Ms Munro worked for a firm of Solicitors in Sailsbury. She is by all accounts a very private person and in particular regarded her age as something she preferred to keep to herself.

When she had some time off for her birthday, colleagues deduced (because one of them had been at School at the same time as her, and also because her date of birth was publicly available on the Companies House website) that she had turned 50.

On her return to work a colleague made a comment along the lines of  "It was your 50th wasn't it? You can't hide it, you know."

Although the remark was intended light-heartedly, Ms Munro appears to have taken quite genuine offence about it and complained to her employer. She alleged that the colleague had "jumped at her like a snake." 

The following month, as a result of complaints about her performance the Firm decided to start disciplinary proceedings against Ms Munro. She was offered a Settlement Agreement as an alternative but negotiations broke down and she resigned.

She subsequently brought a Claim alleging that the actions of her colleague were age-related harassment and direct discrimination and that the Firm had subjected her to detriments because she had raised public interest disclosures about alleged confidentiality concerns after being offered the Settlement Agreement.

The Tribunal rejected the Claims.

It found that the comments were trivial and not meant maliciously. It reminded itself that whilst intent is not a necessary element of a harassment Claim, the Tribunal does have to find that Ms Munro's perception that it violated her dignity or created an unacceptable environment for her was reasonable and that the treatment must be of a particularly bad nature. Any other approach would trivialise the law.

Whilst it accepted that Ms Munro was genuinely upset, and that the colleague had probably realised that she had "put her foot in it", it was not reasonable for her to have reacted as she did.

The Direct Age Discrimination Claim failed because there was no evidence that a comparator of a different age would have been treated any differently.

In relation to the Whistleblowing Detriment Claim, the disclosures were made in Ms Munro's self-interest and there was no basis for a reasonable belief that they were in the public interest (as the law requires.) To the extent that there was any detrimental treatment at all, it was not because of any disclosures anyway.

Not only were the Claims dismissed, but Ms Munro was ordered to pay £1700 towards the Firm's costs. In addition to the weakness of her Claims the Tribunal took into account that she had unreasonably rejected sensible offers of settlement.

The case is a first instance decision and does not set any precedent for other cases. It does not anyway mean that "jokes" about age can never give rise to a Claim. If someone made, or persisted in, such comments when they knew that they would upset the recipient, or if there was malice behind them, then the situation could well be different. As damages for discrimination can be unlimited, and include substantial amounts for injury to feelings, employers should ensure that they have robust policies against discrimination and harassment and that employees know what is expected of them in terms of treating others with respect and dignity.       

Thursday, October 03, 2019

Vegetarianism Is Not A Religion - Official (Sort Of)

An Employment Tribunal in Norwich has found that a Claimant's vegetarianism was not the protected characteristic of religion or belief for the purposes of the Equality Act 2010 and that his Claim could therefore go no further.

Mr Conisbee was employed by the Respondent as a waiter and barman for about 5 months until he resigned following an incident at work when he had been told off for turning up in an unironed shirt.

As he had less than 2 years' service he could not bring an Unfair Dismissal Claim but he brought Claims alleging various incidents of harassment and discrimination which he said he had suffered because he was a vegetarian.

Non-religious philosophical beliefs qualify for protection under the Equality Act if certain criteria are met. These include that they are genuinely held and are not a mere opinion or viewpoint, must relate to a weighty and substantial aspect of human life and behaviour, attain a certain level of cogency and seriousness, be compatible with human dignity and not conflict with the fundamental rights of others.

It has previously been held in another case that belief in man-made climate change is capable of being a protected characteristic.

The Employment Judge had to decide whether the test was met in this case. 

The Judge decided that it was not.

There was no doubt about the genuineness of the Claimant's view that "the world would be a better place if animals were not killed for food", but it was an "opinion" rather than a "belief." (Although it is hard to see where one draws the line between the two.)

Vegetarianism was a "lifestyle choice" which could not be said to relate to a weighty and substantial aspect of human life and behaviour. (Some might question this - choice of food might be said to be a very substantial aspect of human life and behaviour.)

The belief did not have the necessary cogency and seriousness - there are all manner of reasons, from health considerations to simple personal taste, why people are vegetarians.

Interestingly the Judge drew a contrast between vegetarianism and veganism and suggested that the all-encompassing worldview and total rejection of any consumption or exploitation of animals which is involved in the latter would potentially fall on the other side of the dividing line.

This case is only a first instance decision and is not binding in other cases, and it could yet be appealed. Nevertheless it is an interesting one and contains plenty of scope for further argument.


Thursday, January 17, 2019

Telling a Barrister Not To Lie Is Not Biased!

The Employment Appeal Tribunal (EAT) has ruled that there was no appearance of bias justifying the overturning of an Employment Tribunal's decision when an Employment Judge told a Claimant's barrister during a Hearing that there was "no need to lie."

Mrs Balakumar was bringing an Employment Tribunal Claim. She was represented at the Hearing by 2 barristers.

Proceedings appear to have been quite difficult and a considerable amount of time was taken up dealing with applications, including one by the Claimant to admit additional late evidence. One of the lay members of the Tribunal subsequently expressed the view that one of the Claimant's barristers had given the appearance of being hostile and aggressive to the Tribunal.

Following the decision on the second application, Counsel in question asked for an adjournment to explain the decision to the Claimant. This appears to have been granted reluctantly and the adjournment then lasted for longer than had been granted. Following their return to the Tribunal, the barrister asked for a further adjournment in order to appeal the decision on the application to the EAT.

The Employment Judge might perhaps be forgiven at this point for beginning to lose patience. She apparently misheard (or misunderstood) what Counsel said and thought she was saying that the previous adjournment had been for the purposes of appealing. She said something to Counsel to the effect that there was "no need to lie" and that the Tribunal would not be offended if they were told that their decision was potentially subject to appeal.

Counsel took offence at what she consider to be being accused of being a liar. The Employment Judge apologised for mishearing Counsel.

The Claimant's application for an adjournment was refused, the case continued and the Claims failed.

Mrs Balakumar appealed to the EAT alleging that the Employment Judge's comments gave rise to an appearance of bias and that this meant that the Judgment could not stand.

The legal test is whether a fair minded and informed observer would consider that the Tribunal was biased.  The EAT concluded that it would not.

Whilst no weight can be attached to the Tribunal's own view that it was not biased, since bias can be unconscious and insidious,they accepted that the Judge had genuinely misheard Counsel, in the context of a Hearing at which there had been previous comments about difficulties in hearing what Counsel was saying because she was quietly spoken and the acoustics in the room were poor. 

The Judge had expressed herself in regrettable terms, but if she genuinely thought she had been misled by Counsel it was understandable that she would feel bound to say something about this.

The case was very different to a case in the Family courts which had been referred to in argument where a Judge had been held to have given the appearance of bias where he had made sarcastic remarks about "flying carpets" and "Turkish delight" in a case involving parties from the Middle East.

Wednesday, October 10, 2018

It's OK Not to Bake a Gay Cake - Supreme Court

In an eagerly-awaited Judgment today the Supreme Court has confirmed that a bakery in Northern Ireland did not discriminate on when they refused to accept an order to make a cake bearing a slogan supportive of gay marriage.

This is the so-called "Gay Cake" case.

Mr and Mrs McArthur are Christians. They run a chain of cake shops in Northern Ireland. Mr Lee is gay. He asked the bakery to provide him with a cake showing a picture of Sesame Street characters Bert and Ernie (who, ironically, have recently been the subject of debate over their sexuality, with the "official" pronouncement being that they do not have one) and headed "Support Gay Marriage."

As the McArthurs had a religious objection to gay marriage they refused to provide a cake containing a message with which they disagreed.

Mr Lee sued the bakery for unlawful discrimination on grounds of sexual orientation.

He succeeded at first instance and at the Court of Appeal.

The bakery appealed again to the Supreme Court, the highest court in the land.

The Supreme Court unanimously upheld the appeal. They found that Mr Lee was not refused the service because of either his actual or perceived sexual orientation but because of the bakery's objection to the message on the cake. The bakery had apparently fulfilled orders for Mr Lee in the past and also employed gay people so it was not his sexuality per se with which they had an issue.   

This was a case of direct discrimination, so the Claimant had to prove that it was his sexual orientation which was the cause of the discrimination. The outcome might conceivably have been different if the case could have been pursued as an indirect discrimination claim (where the bakery imposed a requirement which was more difficult for a gay person to comply with) or as a protected characteristic "related" discrimination.

The Court also found that the rights to freedom of religion and expression include the right not to be compelled to manifest a belief which one does not hold.

This was a very difficult case. Many of the cases on religious and sexual orientation discrimination revolve around the issue of whether the freedom to express your sexuality "trumps" the right to express disapproval of same sex relationships on religious grounds, or vice versa. This particular case also raises the very thorny issue as to whether Mr Lee's freedom of expression takes precedence over the bakers'. While it could be argued that Mr Lee could always take his business elsewhere, what if he lived in a conservative community where every baker took the same view? And is baking a cake for someone endorsing the views on it? On the other hand, whilst gay marriage is generally supported by the majority of society today, what if it had been a "Nazi cake"? 

Thursday, August 30, 2018

I Just Can't Switch Off!

The BBC reports today on a study by the University of the West of England which suggests that commuters so regularly use travel time for work emails that it should be classed as working time.

54% of commuters who were using wi-fi on the train journeys examined were sending work emails.

Modern technology and the ability to work remotely has blurred the boundaries as to what constitutes being at work.

There are a host of legal issues which could arise from this.

By law workers cannot generally be required to work more than 48 hours per week unless they have signed a waiver of their rights in this regard. If time spent dealing with work emails is counted as working time this could lead to breaches of this legislation.

The National Minimum Wage is calculated by reference to hourly rates, and if this time is included it could mean workers are being underpaid if it has not been taken into account when working out their pay.

If workers are expected to deal with work emails whilst on holiday, this could call into question whether this can properly be treated as holiday (which is technically a health and safety requirement) so as to satisfy the rules around minimum periods of annual leave.

Someone who is never able to "switch off" might also in certain circumstances have grounds for a work-related stress claim if it led to burnout.

A requirement to be "on call" 24 hours a day to deal with work emails could also give rise to indirect discrimination claims from people who have family or caring responsibilities outside of work if such a practice has a detrimental effect on their ability to fulfill those responsibilities or otherwise damages a satisfactory work/life balance.

There are also potential confidentiality and data protection implications around the use of technology on the move. More than one lawyer has been fined by the Information Commissioner for losing portable electronic equipment containing sensitive confidential information and a mental health doctor got into serious disciplinary hot water when she was allegedly overheard loudly discussing confidential case details on the telephone one the train.

Quite apart from the legal aspects of the situation, employers will want to reflect upon the impact that having no "down time" will have on employees' job satisfaction, energy levels and productivity.