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Our Monthly Employment Law Updates provide a summary of some of the most important cases, helping our clients and contacts to stay up-to-date on recent case law developments.

October’s Employment and HR update covers the following;

1)The burden of proof in race discrimination
2) Is Vegetarianism a protected characteristic?
3) Brexit
4) Parental Bereavement Leave
5) New Guidance on Menopause

October Employment & HR Update

If a manager, lies in good faith, about the reason for dismissing an employee, is it enough to prove discrimination?

Yes, held the Court of Appeal in Base Childrenswear v Otshudi.

The Case: Ms Otshudi worked for Base Childrenswear as a photographer, her work of a high standard. She was made redundant and believed this was because of her race and so brought forward a tribunal claim.

The Facts: Ms Otshudi, the claimant, is of black African ethnicity. The Respondent sells designer children’s wear. The Claimant was employed to take pictures of clothes for marketing. On 19 May 2016 the Claimant was called into the managing directors office and was dismissed for redundancy. The dismissal was completely unexpected. The Claimant then lodged a grievance stating that her dismissal was discriminatory. The MD did not respond.

The employer said reason for the Claimant’s redundancy was, “purely financial“. The employer later changed his reason for the dismissal, which implied the claimant was stealing. The manager said he had lied about the reason to dismiss the claimant “to minimise potential confrontation”.

Both the tribunal and the EAT found that race was a factor in her dismissal and upheld the race discrimination claim. The employer appealed to The Court of Appeal, which held that the manager’s obvious lying about the actual reason for the Claimant’s dismissal, formed the basis of a case of race discrimination, thus shifting the burden of proof to the employer. The Court of Appeal went on to find that the employer had failed to show that race did not play a part in the Claimant’s dismissal, therefore upheld the race discrimination claim. Whilst the manager may have had a genuine belief that Ms Otshudi was stealing, this was based on a stereotypical prejudice he held against black people. The appeal was accordingly dismissed.

Note for employers: In a discrimination case, the employee must initially show there are facts upon which a Tribunal could conclude discrimination has taken place. If the employee is able to do this, then the burden of proof shifts to the employer to prove no discrimination has occurred. Employers must therefore ensure that their reason for dismissal is legitimate and evidenced. If an employer is untruthful in order to avoid an uncomfortable conversation or out of fear of reprisal for the legitimate reason, this could, as in the above case, shift the burden of proof to the employer to prove the reason for dismissal was not discriminatory, which in certain cases will prove difficult.

October Employment & HR update

Question: Is vegetarianism a protected characteristic under the Equality Act 2010?

Answer: No, as held in Conisbee v Crossley Farms Ltd, the Claimant’s claim that ‘vegetarianism is a protected characteristic under the Equality Act 2010’ were not well founded and the claims were dismissed.

The case: This was a preliminary hearing to determine whether or not vegetarianism is capable of satisfying the requirement and definition of being a philosophical belief (protected characteristic) under the Equality Act 2010.

The Facts: Mr Conisbee, the Claimant, worked for Crossley Farms Ltd, the Respondent, at their Fritton Arms hotel. The Claimant is a vegetarian and throughout his employment, he was purposely given food that he was thereafter told contained meat. This included a croissant that had been basted with duck fat and food that contained gelatine. On 28 August 2018, Mr Conisbee attended work in an un-ironed shirt. He was shouted at, and allegedly sworn at, in front of customers. Following being reprimanded for wearing a creased shirt, the Claimant resigned and claimed direct discrimination and harassment against the Respondent and its employees. The Claimant argued his vegetarianism was a belief that satisfied the definition of a protected characteristic. His claim was based on the fact that the decision to preserve the life of animals satisfied the genuine and substantial aspects of the test for a protected characteristic.

The tribunal accepted that the Claimant was a vegetarian and had a genuine belief in vegetarianism and animal welfare. However, it held that vegetarianism is not capable of amounting to a philosophical belief under the Equality Act 2010. It was held that there were many reasons people might not eat meat, for example as a lifestyle choice, and that vegetarianism as a belief must have a ‘similar status or cogency to religious beliefs’, which it did not have. Holding a belief relating to an important aspect of human life of behaviour was ‘not enough in itself’.

Note for employers: Although this claim was rejected, there is a further tribunal being held later this year whereby ethical vegan Mr Casamitjiana, is claiming he was dismissed by the League Against Cruel Sports for disclosing that it was investing pension funds into firms involved with animal testing. The expanding list of cases on philosophical belief discrimination cases must be kept in mind when employers are making employment related decisions in respect of people who may hold beliefs potentially falling within the protection of the Equality Act 2010.

October Employment & HR update

Back in July 2018 The Government published its White Paper ‘The Future Relationship between the United Kingdom and the European Union’.

At paragraph 123, it proposed that there be no change in employment laws.

That meant that no EU based laws would be repealed, meaning that TUPE, the Working Time Regulations, collective consultation requirements and much of the discrimination legislation would not be amended when Britain leaves the EU.

Since then and following Boris Johnson’s recent Brexit deal, not a lot has changed in terms of employment law. However, Jeremy Corbyn has said that should Britain leave under the current agreement, workers could face longer hours and less equal pay conditions. After Brexit, the EU rights that have been protecting workers will not have to be applied by businesses although Boris Johnson has stated that UK workers rights will still mirror those in the EU. For now, we don’t know much more and need to wait and see what deal is agreed.

What we do know is that EU, EEA and Swiss citizens will need to apply to the EU Settlement Scheme if they wish to continue living in the UK after 20 June 2021. If their application is successful, they will either get settled or pre settled status based on how long they have been living in the UK. Once gaining status they will be able to: work in the UK, use the NHS, enrol in education or continue studying, access public funds such as benefits and pensions, if eligible for them and travel in and out of the UK.

Note for employers: It would be prudent to encourage any EU, EEA and Swiss employees living in the UK to apply for settled status in order to avoid any complications when Brexit is agreed.

Employment & HR updates

On Thursday 13 September 2019, it was confirmed that parental bereavement leave will be introduced in April 2020. The UK is leading the way with this right and is the first country in the UK to introduce it.

The new day one workplace right allows primary carers – not just parents –to take time off work following the death of a child under the age of 18 or a stillbirth after 24 weeks of pregnancy.

The new right will not only include biological parents but also adopters, foster parents, guardians, and close relatives or family friends who have cared for the child in the absence of parents.

Employees with 26 weeks’ continuous service will receive paid leave at the statutory rate and other staff will be entitled to unpaid leave.

Leave can either be taken in one block or in two separate blocks of one week. It can be taken within a 56 week window from the child’s death, to allow time for moments such as anniversaries, and notice requirements will be flexible so leave can be taken without prior notice.

Note for employers: Be aware of this new right which will be implemented in April 2020, all employee’s will be able to benefit from it from the first day of their employment and do not need to produce a death certificate.

October Employment & HR update

Acas has published new guidance to help employers support women who experience difficulty at work due to menopause symptoms.

The guidance, published on World Menopause Day (Friday 18.10.2019), offers employers examples of good practice in helping female staff control the menopause at work. It also provides helpful steps for employers and guidance on how to help women going through menopause by offering changes such as, altered working hours and providing desk fans.

Acas’ guide also aims to raise awareness of the menopause-related issues that might lead to employers being in conflict of employment laws, including the risks that might lead to claims of sex, disability and age discrimination. Menopause and perimenopause are not specifically protected under the Equality Act. However, if a worker is treated unfairly because of the menopause and perimenopause, this may amount to discrimination because of their sex and or their age.

Menopause campaigner Meg Matthews, who founded the MegsMenopause advice site, said: “Acas’ guidance will help give employers the knowledge they need to fully understand their colleagues who are going through the menopause and struggling with symptoms.

Note for employers: Ensure you and your management team are aware of the new guidance and employment laws that can relate to menopause issues at work. It may be a good idea to create and apply a menopause policy. Provide awareness training for managers to deal with any concerns in a sensitive way.

For more information, please contact Tom Evans: 0151 230 1217

Tom Evans Employment and HR

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