Regular readers are aware that I have a particular interest in the frequently uncomfortable overlap between religion (and philosophical beliefs) and employment law. This month has provided more examples of moral dilemmas and what might at first appear to be unexpected outcomes which push the boundaries of jurisprudence, even in what would otherwise be mundane cases.
“I cannot tell a lie”
A tribunal in Birmingham has heard a case brought by a Christian telesales who complained that he was, contrary to his beliefs, required to lie in order to make sales. In Hawkins v Universal Utilities Ltd t/a Unicorn. Mr Hawkins commenced work on 22 February 2012. Things did not go well. He was told during his induction to “be creative” when speaking with PAs and secretaries and made a note that the trainer advised him “to lie”. He felt by the end of the first day “that he would end up in an employment tribunal”.
He was dismissed two days later because he had failed to meet his targets. His employment tribunal claim duly followed.
Significantly, the Tribunal found that a belief that an individual should not tell lies under any circumstances is a protected philosophical belief under the Equality Act 2010. However the claim failed because Mr Hawkins could not show that he had been placed at a particular disadvantage. Specifically, on the facts, he was unable to show that lying was a requirement in order to work for the Company.
“is it because he is white?”
In terms of the law the Employment Tribunal decision in Turton v Halal Food Group is unremarkable. However it has attracted attention because the claimant, Christopher Turton, described as white British, claimed race and religious discrimination and was awarded compensation of £2,550.
Mr Turton was one of only two non-Muslim employees in a workforce of about 300. He was promoted from area manager to national concession manager. Following his promotion and email was circulated among the workforce questioning whether his promotion was “because he is white” and pointing out that he was not “a Muslim brother”.
Although the Firm’s management disapproved of the email, organised a meeting with those responsible for it and issued an apology to Mr Turton, he maintained that the email was “extremely offensive” and he continued to feel alienated. He went off work with stress and subsequently resigned.
At the Employment Tribunal Judge Victoria Dean found that the email was racist and offensive and that Mr Turton had, as a result, suffered injury to his feelings which, in turn, resulted in the award of compensation.
“servants of God”
In The President of the Methodist Conference v Preston the Supreme Court has delivered its decision concerning whether or not working for a church is employment similar to any other employment and thereby attracting the same legal protection, or whether it has a “spritual character” which transcends such temporal arrangements.
This is a vexed question that has kept the courts busy for many years – as reported in the judgment “ever since the introduction of national insurance in 1911”. The more recent authorities make the distinction between an office and an employment. They also emphasise that there is a spiritual nature to a minister of religion’s “calling” which makes it unnecessary to characterise the relationship with the church as creating any legal relations, let alone those sufficient to establish a contract of employment. However, in Percy v Church of Scotland, a decision of the House of Lords dating back to 2006, Ms Percy was able successfully to establish that she was employed under a contract personally to execute work so that her claim in an employment tribunal could proceed.
Notwithstanding the decision in Percy an employment tribunal rejected the claim by Ms Preston because it concluded that she did not have a normal contract of employment and was not employee. However, that decision was successfully reversed on appeal to the Court of Appeal in 2011. In turn, the Church appealed on the basis that categorisation as employment did not accurately reflect the true nature of the “covenant relationship” between her and the Church which, for example, prevented her from being able to resign unilaterally.
In the leading judgment Lord Sumption QC referred to cases in which people were identified as “servants of God” and pointed out that the Church provided resources such as a stipend to enable a minister to serve God. The majority agreed so the Church succeeded in its appeal. However Lord Sumption pointed out the importance of examining each case on its facts so there is no general principle that can be gleaned from the judgment. Further, in a dissenting judgment, Baroness Hale made the pertinent observations (consistent with the approach of employment tribunals in many cases) that there is no mutual exclusion between the posts of office holder and employee (e.g. a company director) and that:
Everything about this arrangement looks contractual, as did everything about the relationship in the Percy case. It was a very specific arrangement for a particular post, at a particular time, with a particular manse and a particular stipend, and with a particular set of responsibilities. It was an arrangement negotiated at local level but made at national level…In my view, the EAT and the Court of Appeal reached the right result in this case and I would dismiss this appeal.