just how far can the concept of philosophical beliefs extend?

Posted on October 26, 2011 by Martin Malone

As originally drafted, the Employment Equality (Religion or Belief) Regulations 2003 prohibited discrimination on grounds of religion or "similar" philosophical beliefs.

Then the Equality Act 2006 removed the requirement for such similarity, and extended the protection to any philosophical belief: the Equality Act 2010 s.10 continues with that wide definition.

Removal of just one word dramatically increased the potential for seeking protection from discrimination on a whole range of lifestyles, ideas and practices. As we’ve reported on many occasions it is fair to say that, over recent years, claimants have put forward quite an esoteric mix of possible candidates, and establishing whether these actually amount to a protected philosophical belief is becoming a standard pre-hearing review issue for employment tribunals. Continue reading →

indirect discrimination justified by expense alone

Posted on September 26, 2011 by Martin Malone

The recent case of Cherfi -v- G4S Security Services Limited has provided the Employment Appeal Tribunal (EAT) with an opportunity to consider whether indirect discrimination can be justified on the ground of cost alone.

Mr Cherfi worked as a security guard at a site in Highgate from 2005. He regularly took time off work on Friday (paid) lunchtimes to attend prayers at a mosque. In 2008 his employer told him that he could no longer do so because there was a contractual obligation to keep a minimum number of guards on site during operating hours. He was offered a changed working pattern, working Mondays to Thursdays and alternating Saturdays and Sundays so that he could take Friday as a day off. Mr Cherti refused this offer. Instead, he took time off for sick leave, annual leave or authorised unpaid leave. Continue reading →

religious discrimination

Posted on August 14, 2011 by Martin Malone

It seems that the Equality and Human Rights Commission agrees with the many Christians who believe that courts and tribunals “have interpreted the law too narrowly in religion or belief discrimination claims”.

In a Press Release issued on 11 July 2011 the Commission says that it is concerned that “rulings already made by UK and European courts have created a body of confusing and contradictory case law. For example, some Christians wanting to display religious symbols in the workplace have lost their legal claim so are not allowed to wear a cross, while others have been allowed to after reaching a compromise with their employer”. The Commission is at pains to point out that it is not supporting only Christians in this context – one example it gives is that of a Jew who asks not to have to work on a Saturday for religious reasons. Continue reading →

Harrods: female employees must wear “full makeup” and even visitors must observe the “dress code”

Posted on July 25, 2011 by Martin Malone

In 2011 the extraordinary and surely outdated dress codes operated by Harrods department store have been highlighted by a complaint brought by former employee Melanie Stark.

As reported in The Guardian Ms Stark, who worked not in the makeup department but in the HMV franchise, was told that she must wear “full makeup” including lipliner, lipstick and lipgloss, as well as “base and full eyes”. Continue reading →

Yet more on what constitutes a “philosophical belief” in the context of discrimination

Posted on April 18, 2011 by Martin Malone

I have written on numerous occasions about the sometimes odd and unexpected practical applications of the Religion and Belief Regulations (now incorporated within the Equality Act).

This month has seen another and some would say rather tenuous interpretation of what constitutes a protected philosophical belief. Mr Devan Maistry worked for the BBC and presented complaints to an employment tribunal alleging discrimination based on his age and his belief that “public service broadcasting has the higher purpose of promoting cultural interchange and social cohesion”.

At a preliminary hearing the tribunal had no difficulty in finding that Mr Maistry had a genuine belief in the “higher purpose” of the BBC. Perhaps more surprisingly the tribunal was also willing to accept that this constituted a philosophical belief capable of protection under discrimination legislation.

I am bound to observe that this latest in a series of similar decisions makes one wonder where the limits will be drawn when considering such matters. It is hard to imagine that the legislators had this type of scenario in mind when approving legislation to provide protection against discrimination primarily on religious grounds. Belief systems can be undertood to encompass religion, world view, philosophy, ideology or even “life stance” (for more on the latter read here).

I should make clear that I do not think that either Mr Maistry or those advising him are wrong in their approach to the claim based on current law. However I do question whether this is a legitimate area for statutory protection from discrimination. It is easy to see how many employees could have very strong views about the purpose and importance of the work that they do, e.g. teachers, doctors, lawyers, charity workers etc., but does that really mean that all should have a potential route to legal redress based on discrimination? There is also the troubling aspect of those whose philosophical beliefs are at the edges or perhaps beyond those which are acceptable to society as a whole. Presumably they should be entitled to similar protection? Perhaps the ultimate irony would be discrimination law coming to the protection of someone whose beliefs are profoundly discriminatory. Based on current case law, this is entirely conceivable and more or less inevitable. Yet again it seems that the best of intentions could result in a wholly unintended and unwanted outcome.

Dismissal for religious belief or how that belief is manifested?

Posted on January 26, 2011 by Martin Malone

The Equality (Religion and Belief) Regulations 2003 (now part of the Equality Act 2010) were introduced, as the name suggests, to protect against discrimination on the grounds of religion or a belief system.

In Power -v- Greater Manchester Police Authority the Employment Appeal Tribunal considered the dismissal of Mr Power, a committed spiritualist, who worked as a Special Constabulary Trainer. Shortly after he started his job his employers discovered that police officers had complained that, in his previous work, he had been disruptive and unhelpful on training courses and that he had been distributing CDs and posters about spiritualism.

He was called to a meeting with an HR manager following which he received a letter notifying him that his employment was terminated with immediate effect. The letter included the following:

Information has come to light regarding previous work with Neighbouring Forces and your current work in the psychic field which is not compatible with employment in Greater Manchester Police. I can confirm that if this information had been made available to us prior to you joining the force as a member of police staff, we would not have offered you employment.”

Mr Power presented a complaint of discrimination to an employment tribunal and lost. The tribunal found that he was dismissed not because of the beliefs he held but because his previous conduct showed that he was unsuitable to train police officers and the distribution of the CDs and posters, although related to his beliefs, was an unacceptable way of expressing those beliefs. Incidentally, it is interesting to note that this is not quite what the letter of dismissal says as shown above. However, when he appealed against his dismissal he was told that the phrase “work in the psychic field” referred not to the belief held by him “but on the basis that the material [distributed] was inappropriate”. The distinction is critical because, on appeal, the EAT agreed with the employment tribunal and confirmed that Mr Power was dismissed, not because he was a spiritualist and did work in the psychic field, but because of how he manifested his beliefs by distributing the material.

Did it make any difference that the belief in question was spiritualism? That issue is not addressed in the decision but it would be interesting to see how the activities of an evangelical Christian might be regarded in similar circumstances. Such an individual would be expected, as part of his or her belief, to “spread the word” with a view to encouraging people, presumably including those encountered in the workplace, to become fellow evangelical Christians. The word evangelism is derived from the Greek words to announce good news, bring a good message or preach the Gospel.

Yet again the application of the Regulations (now within the Act) brings with it the uncomfortable overlap between moral questions, including those concerning freedom of expression of faith, and application of the law in a largely secular society.

Associative discrimination – when a “gay pub” becomes a “gastropub”

Posted on January 23, 2011 by Martin Malone

In Lisboa -v- Realpubs Limited and others the Employment Appeal Tribunal was asked to consider whether the employer’s policy of encouraging a wider clientele at what was previously recognised as a gay pub led to less favourable treatment of gay customers which in turn caused Mr Lisboa to resign in circumstances amounting to discriminatory constructive and wrongful dismissal. Although the case was decided on the basis of the legislation which applied prior to the implementation of the Equality Act 2010 the principles remain relevant.

The Coleherne pub in Earls Court was known as London’s first “gay pub”. However, by 2008 the pub was in decline and it was bought out by Realpubs Limited which had a reputation for reinventing failing pubs as gastropubs, offering high quality food and drink to all sections of the community. It was renamed as the Pembroke Arms. Mr Lisboa, an openly gay Brazilian man was recruited as assistant manager of the new Pembroke Arms. His employment lasted for 42 days (from 1/12/08 to 11/1/09). In his second week of employment he was instructed to put up a board outside the pub saying “this is not a gay pub”. He refused and instead put up a notice saying “under new management – friendly staff”. In an email sent on 8 December a director said that they were making sure that people knew that it was no longer an exclusively gay pub and that they were barring “over the top” old customers but this needed “to be done right!!”. Staff were encouraged to seat customers who did not appear to be gay in prominent places so they could be seen from outside the pub. The employer also took steps to achieve its policy of having an even balance between the sexes in the staff working at the pub.

The repositioning policy apparently failed since the tribunal found that the clientele both before and after the re-launch remained at 90% gay.

The pub manager resigned on 30 December and Mr Lisboa decided to resign on the same day. A director tried to persuade him to stay and said that if he was resigning because of the “gay issue” he was sorry if he had not expressed himself properly on that issue. Mr Lisboa confirmed his resignation on 11 January. He brought claims of common law constructive dismissal and discrimination under the Sexual Orientation Regulations, alleging comments directed at him concerning his sexual orientation and a course of conduct by the employer under which he was put under pressure to work in a way which made the pub less welcoming to gay customers than to straight customers.

The tribunal found that there were examples of direct discrimination but rejected the claim based on the trading policy on the basis that Realpubs were operating on the basis of a legitimate commercial objective. It found that nothing was done to make the pub unwelcoming to gay customers in general or less welcoming to gay customers than other patrons.

The EAT identified the key issue in this regard as whether the repositioning of the pub went too far in embracing a policy of putting pressure on gay customers or taking negative steps which made the pub less welcoming to gay customers. The tribunal focused on the commercial objective of Realpubs but the EAT took the view it should have made a judgment about whether the wider factual matrix resulted in the old gay clientele being treated less favourable than the desired straight/family customer base on the grounds of their sexual orientation. Based on the facts that was “plainly and unarguably” the case. It followed that Realpubs was operating a policy which discriminated against gay customers so that Mr Lisboa’s reason for resigning was prompted by unlawful discrimination against customers. This was sufficient to constitute a repudiatory breach of the contract of employment on which to base the claim for constructive dismissal. The result is that the EAT reversed the decisions concerning associative discrimination and constructive dismissal and remitted the case to another employment tribunal to determine the amount of compensation payable to Mr Lisboa.

In response to the decision Realpubs said it respects all members of its team and welcomes all customers. It is considering an appeal. Although the law concerning discrimination based on working conditions and environment is fairly well established the case provides an interesting demonstration of how an ostensibly well-intentioned employer can nonetheless fall foul of laws designed to protect against discrimination in circumstances in which its general policies and practice can lead to claims by individual employees.

newsletter – Equality Act 2010 – positive discrimination

Posted on October 26, 2010 by Martin Malone

As a general rule, positive discrimination in favour of a particular category of persons involves discrimination against those not in that category. Depending on the particular situation, positive discrimination in favour of one category of persons is therefore likely to be unlawful discrimination against others.

The Equality Act allows what it calls “positive action” in some situations. It covers permitted positive action in two separate sections. One essentially restates previous law and came into force on 1 October. The other relates to recruitment and promotion, is new and is not yet in force – the coalition government is still considering whether or not to bring it into force.

The section which came into force on 1 October 2010 ensures that “positive action” is lawful if it is a proportionate way of achieving defined aims, essentially alleviation of disadvantage experienced by people sharing any of the “protected characteristics”, viz age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex (gender) or sexual orientation. In essence this goes very little, if any, further than previous law.

The section which is not yet in force will, if and when it is implemented, allow an employer to take these “protected characteristics” into account in selecting to whom to offer a post if (i) people having the same protected characteristic are at a disadvantage or are under-represented and (ii) the candidates are each as qualified as the other(s). It covers not only employees and prospective employees but also applicants for contract work, prospective partners in a firm (including LLPs) and applicants for pupillage or tenancy in barristers’ chambers and so on.

Apart from these general provisions, the Equality Act 2010 also allows, as did previous law, positive discrimination in favour of the disabled. Further, as noted above in the note in this newsletter concerned with health questionnaires, the Act provides an exception from the normal ban on employers asking “pre-employment offer” health questions if positive action is appropriate for example in making arrangements for interviewing a disabled job applicant.

This is an item from our October 2010 newsletter. If you are interested in subscribing to our monthly newsletter please click here.

newsletter – Equality Act 2010 – pre-employment health questions

Posted on October 26, 2010 by Martin Malone

With a few necessary exceptions the Equality Act 2010 makes it inappropriate for an employer to ask a job applicant any health related questions before offering work to the job applicant. Merely asking questions about the job applicant’s health is not unlawful disability discrimination but anything the employer does in reliance on information given in response to such questions may be. Also merely asking the question may give the Equality and Human Rights Commission power to investigate and issue an “unlawful act notice”.

The common practice of asking job applicants to complete a health questionnaire as part of the job interview process is thus now generally dangerous and is to be deprecated.

There are 3 points to make in connection with the above:

this provision does not apply once an offer of work has been made. Making an offer of work subject to a satisfactory medical is therefore perfectly in order;
in practice the provision is unlikely to make much difference to the eventual outcome of most cases which go as far as an employment tribunal. The Equality Act 2010 shifts the burden of proof to the prospective employer to disprove discrimination if an unsuccessful job applicant makes a complaint to an employment tribunal that his job application was rejected because of a reply to a “pre-job offer” health related question. However in practice, in the vast majority of cases under previous law, it is likely that a tribunal would have come to the same ultimate conclusion;
the Equality Act 2010 specifies five situations when it is in order for a prospective employer to ask health related questions of a prospective employee. These are essentially where:

(a) questions are asked to ascertain whether any reasonable adjustments will have to be made to enable the job applicant to attend an interview;
(b) questions are asked to establish whether the job applicant will be able to carry out a function that is intrinsic to the work concerned;
(c) questions are asked for “monitoring diversity in the range of persons” applying to the employer for work;
(d) positive action is to be taken, where that is allowed (see the next newsletter blog post);
(e) having a particular disability is an occupational requirement for the job, provided that is a proportionate means of achieving a legitimate aim.

This is an item from our October 2010 newsletter. If you are interested in subscribing to our monthly newsletter please click here.