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Are views on fox hunting, life after death, veganism, Brexit or Scottish Independence protected, or are they just opinions?
And what happens when one person's belief conflicts with another's, like Christianity and homosexuality? Is there a hierarchy of protected beliefs?
Philosophical beliefs can be a tricky area for HR teams to advise on, but it's a growing issue and important to get right from a reputational and financial perspective.
In this episode, TLT's employment team offers their views and shares some advice on how to deal with these cases, including the need to remain objective, listen and to have clear policies on how the company handles discrimination and bullying.
We also comment on recent news stories including:
Jonathan Rennie: Hello and welcome to episode two of TLT's Employment Law Podcast. I'm Johnathan Rennie, a partner and a member of TLT's White Employment Team and I'm joined by Fraser Vandal, a solicitor in our Glasgow office.
Fraser Vandal: Hi there.
Jonathan Rennie: We also have Sarah Skeen, an associate in our Bristol office.
Sarah Skeen: Hello.
Jonathan Rennie: This podcast is our chance to help you spot the issues that are most important or challenging to get right, and also for us to share some useful insights and expert advice across our national team. Today, we're going to be answering questions like, what is a philosophical belief and how does the Equality Act deal with this protected characteristic and we're going to look at what issues each our legal teams face when these beliefs arise in the workplace.
Jonathan Rennie: Before we get started, we want to say a massive thank you very much for all of your positive comments on episode one, which was on the Me Too Movement and sexual harassment. It's really great to hear that you're finding the podcast to be useful and we look forward to answering some of your questions later in this episode. As I say, our main topic today is philosophical belief under the Equality Act and what happens when that protected characteristic conflicts with other characteristics under the legislation. Before we look at that, firstly, Fraser has a roundup of the news.
Fraser Vandal: Thanks Jonathan. First of all, on Brexit, unfortunately, we still don't have a clear position on that with a change of Prime Minister coming in the next couple of weeks and the Parliamentary summer holiday, it does seem like this is one that is going to run below until October at the very least. From an HR and people perspective, the positive news is that the EU Settlement Scheme is operational and has been fully operational since the end of March. By all accounts, broadly speaking, is working well and it is working as anticipated.
Fraser Vandal: There have been a couple of anomalies. You may have seen a recent place story where a couple with a pre-settled status, which is the status individuals can achieve under the scheme when they haven't been resident in the UK for five years. They were refused entry onto flight back to the UK and that took them 24 hours to actually have that position rationalized overseas so it does throw out the question of whether pre-settled and settled status should be a purely digital status as it currently is, or whether individuals should have a resident's permit or a stamp in their passport as physical proof.
Fraser Vandal: A couple of occasional developments since we were last with you as well. First of all, in the case of CCOO against Dutch Bank, this was at a European Court of Justice case and it suggested that the provisions of the European work and time directive actually require a system of monitoring the actual, precise numbers worked by a worker. The UK working time regulations don't go that far.
Fraser Vandal: That only requires employers to have an adequate records to show whether limits on a weekly working time and night work have been complied with. There are no specific requirements relating to records for a daily list, a weekly list or the actual number of hours worked. It does throw out the question then of whether our working time regulations are actually compliant with what the EU requires and its directive. I wonder Jonathan, do we expect to see any challenges in that respect, any time soon?
Jonathan Rennie: Yes Fraser. We need to wait and see how this one develops in practice and report back. I don't see it being so much of an issue for office workers where they might be clocking in and clocking out and that type of electronic record keeping. I can definitely see it as being more problematic or an issue for employers in perhaps, the construction sector where there are mobile workers and employees are out and about. Watch the space.
Fraser Vandal: Thanks Jonathan. Just lastly on the news from, the government's consultation on maternity rights and enhanced rights on individual's returns from maternity leave has recently closed. Lots of interesting stuff in there including the idea of perhaps extending the time limit for maternity discrimination claims from the current three months. We're going to have a look later on at the issue of protected characteristics and whether perhaps there's a hierarchy developing in the Equality Act where there are some circumstances where there are some characteristics will receive preference over others.
Fraser Vandal: I'm just wondering if this idea of extending time limits for maternity claims could ultimately contribute to that. I mean, Sarah, what do you think about the content of the consultation in this area?
Sarah Skeen: I think you're absolutely right. It's a really interesting consultation. Actually, those on maternity leave have enhanced rights already. Some of our listeners may be familiar with the fact that, if you're maternity during your redundancy process, you have a right to be offered an available vacancy in preference to somebody who's actually working at that time.
Sarah Skeen: We know here that actually, that right comes to quite a surprise to many of our clients. I can see that issue from both sides. On the one hand, it does seem contrary to sensible, logical business practice, to offer somebody a role, just because they're on maternity leave when actually, they might not be the best candidate for that position. Actually, if you look at it from the employee's perspective, statistics and quite surprising statistics bare out that women on maternity leave and mothers are much more likely to be made redundant than anybody else.
Sarah Skeen: A charity maternity action estimate from the quite detailed research, in fact, that one in every 20 women on maternity leave are made redundant, either during their pregnancy, their maternity leave or on their immediate return to work. This surprising statistic, I think, runs contrary to the law in this area but actually, what it does show is there is still a culture of discrimination, whether conscious or unconscious of those who are pregnant and on maternity leave, which creates some real difficulties. Perhaps a change in the law, beyond just the time limit would be welcome here.
Jonathan Rennie: Yes, I think that's right Sarah. Sometimes it's not just the actual redundancy decision but it can also be the timing of that decision that can be an issue for a returning mother. I certainly had a recent client experience acting for a returning maternity case where their employer had waited until she returned from maternity leave and reduced her hours down to three days a week, to make her redundant, in order to reduce the redundancy pay and entitlement because she was essentially, a part time worker.
Jonathan Rennie: You can see that some employers, particularly those facing financial difficulty, might approach matters in that way so it's an area that's fraught with difficulties and I'm actually very pleased personally and professionally that the government have issued this consultation. Let's hope that the consultation results in positive change here and also enhanced protections for returning maternity cases.
Jonathan Rennie: Let's move on now to talk about our main topic today, philosophical beliefs under the Equality Act. Essentially, we're looking at what's protected under the law and what to do when these protected characteristics conflict with each other. This is an area that's received massive press attention in recent months and is often a protected characteristic that flies under the radar and isn't always one that is at the forefront of people's mind in the same way as say, for example, age discrimination, disability discrimination, etc.
Jonathan Rennie: However, as we've seen recently, it's an area where people can potentially be caught out. Given there is an uncapped compensation limit for discrimination claims, these type of claims can be very costly. HR teams often find this a tricky area to advise on and it can be a high value one. We will try and guide you through this. Before we get into the technical detail, there's a very practical and obvious point here, that an employee can only release an employment tribunal claim where they can demonstrate where they have this protected characteristic.
Jonathan Rennie: This preliminary point is often determined at a procedural tribunal hearing, which is why we are discussing this today, to give you some helpful hints on what to look out for. We also need to be very mindful that organisations will have, for example, dignity at work policies and anti-bullying policies. There is a wider point here beyond the Equality Act definitions.
Jonathan Rennie: No doubt, organisations will want to follow through on any of their internal policies. Where, for example, someone is being bullied at work and even where that is not an Equality Act defined protected characteristic. I wanted to make that point because we're looking at the Equality Act definitions but we need to be mindful of the fact that organisations often have policies over and beyond the Equality Act terms. For starters then, what even is a philosophical belief?
Jonathan Rennie: If I believe that there should be more bank holidays over the summer, is that a philosophical belief? What about fox hunting, Brexit, life after death? Who's protected? Sarah, have you any thoughts on this?
Sarah Skeen: Well actually Jonathan, it's a bit of a mine field, this area, which is obviously why we are trying to guide you through it today. The Equality Act itself, doesn't actually give us much guidance in this area, which of course would be helpful. If you have a religion, then you are protected. In fact, if you don't have a religion, you are protected. What is a philosophical belief?
Sarah Skeen: Actually, this is a question that matters because, if you don't have a philosophical belief, you're not legally protected from discrimination or harassment under the Equality Act. What we do know on the philosophical belief question is that the case though, have tried to define what that is in the absence of a definition under the Equality Act.
Sarah Skeen: We've boiled it down to four key aspects as to what a philosophical belief is. Firstly, the belief must be genuine. Now to me, that sounds pretty obvious. Why bother stating that as a requirement? Actually, what that point emphasizes is that a tribunal doesn't have to agree that the belief is a valid one. It doesn't have to be supported by science.
Sarah Skeen: In fact, you can be the only person in the whole world who holds that belief and you could still be protected, provided your belief is genuine. However, the claimant must be able to demonstrate that they genuinely believe in something and it's not just a whim. The second key aspect is that the person must actually have a belief, not just an opinion or a viewpoint. For this reason, supporting a political party is expressly not protected under the Equality Act definition.
Sarah Skeen: It's not seen as a belief. Similarly, an opinion about whether we should be inside or outside the European Union, is not a belief, it's an opinion but it's very much a fine line as you can probably see. Actually, while supporting a political party is not protected, if you hold a particular political philosophy, for example, you have a strong belief in Communism, then that may well be a belief and now just an opinion.
Sarah Skeen: It's very much shades of gray here, which I'm sure, you'll appreciate lawyers tend to love. The practical question to ask is whether the person's belief affects other areas of their life rather than on just one topic. If it's one topic, it's likely to be an opinion rather than a belief. The third key aspect very much follows on from that.
Sarah Skeen: It's a requirement that the belief must be, and as the courts put it, a weighty and substantial aspect of human life and behaviour. Well, what is that? Well, it's very much a question that the courts have asked themselves quite a lot in case law. The question in reality, comes down to whether or not the belief affects the claimant's life and how they live it.
Sarah Skeen: On this basis, a belief that lying is wrong, has been found to be a philosophical belief. It's not just an opinion, it's something that was weighty and affected their life and behaviour and the claimant's life and behaviour in that case. The fourth and final key aspect here is that the belief must be worthy of respect in a Democratic society and must not conflict with the rights of others.
Sarah Skeen: This is an interesting area and one which is rife for conflict, which we'll discuss in a moment. Going through each of these four tests is very much what the courts do when they're deciding whether something is a philosophical belief. Actually using those tests, the courts have concluded that a belief in climate change is a philosophical belief that should be protected.
Sarah Skeen: It was a genuinely held belief. It was a belief, not an opinion, and it was one that affected the individual's life and behaviour and it didn't conflict with the rights of others.
Fraser Vandal: It seems like what we've got there is a fairly basic definition under the Equality Act but one where, given the case law, there's a huge amount of areas, beliefs that could actually be captured in practice.
Sarah Skeen: That's absolutely right. It's very much digging beneath the surface and having a look at what the case law says. Actually, when you come to it, it can be a relatively high hurdle to jump to show that you have a philosophical belief that is protected.
Jonathan Rennie: Yeah, I think the issue is that there's so many areas of the definition that are up for a debate. For example, case law from 2013, I think it was the case of Elis vs. Parmesan, focused on an individual's beliefs that homosexuality is contrary to God's law and that the Holocaust did not take place. This was found by a tribunal not to be protected because it was in conflict with the fundamental rights of others and was based on a distorted approach of the evidence available regarding the Holocaust.
Jonathan Rennie: However, the fact that the tribunal have to go through these minute details and look at how they've impacted an individual's life means that there is a factual analysis for each of these cases that needs to be explored.
Sarah Skeen: That's right.
Jonathan Rennie: This idea of conflicting with the rights of others is one that we will talk about in a moment and it's been very much highlighted by a sports case, the rugby case involving the Australian rugby player, Israel Folau, albeit his case was not determined under the UL Equality Act. Evidently, as this discussion shows, we can end up in ethical and moral arguments in some of these cases. The law is not always very precise in categorising and protecting beliefs. It can depend on how an individual follows through in those beliefs and their ability before a tribunal, to demonstrate that in their evidence.
Jonathan Rennie: To reflect the fact that they have such fundamental and intrinsic beliefs and basically, how they live their life according to those values.
Sarah Skeen: That's right. It's very much case specific. There've been a number of high profile cases though, involving philosophical belief, haven't they? I think it's potentially, it's quite a decisive area. I seem to remember there was a fairly recent case involving Scottish independence. With two Scotsmen in the room, what's your view on that?
Fraser Vandal: This was the case Mikelani against the Ministry of Defence. An interesting one around some of these points around fine distinctions between opinions and beliefs, which you've discussed already, Sarah. Mr. Mikelani was a counsellor and he signalled his intention to stand for the Deputy Leader of the Scottish Nationalist Party. He wanted to reflect the fact that this was a philosophical belief because he said that he was subjected to a detriment by the Ministry of Defence when he indicated that he was going to stand for this position.
Fraser Vandal: The Glasgow employment tribunal actually found that his philosophical belief in Nationalism was worthy of protection and was a philosophical belief and it was held to have a discordancy or a seriousness similar to a religious belief and was therefore, protected under the Equality Act. Clearly, critics of this, and there are many critics, we're seeing that the individual simply supported a political party but the tribunal didn't see it that way. They say it as his belief in Nationalism, as being distinct from his support of a particular political party.
Fraser Vandal: Now clearly, that might seem like hair splitting and raises various questions but I can see how the tribunal formed that view because the individual was very compelling as to how this impacted on his life and how he chose to live.
Sarah Skeen: Yeah. You're right. It occurred to me in some of the recent press around veganism. That actually, this could be an issue within this context. The Vegan Society say that the demand for vegan grew by 987%, if that is a percentage, in 2017 and 2018 and the UK's launched more vegan products than any other country in the world. If veganism was found to be a philosophical belief, that could have quite a wide impact too, couldn't it?
Fraser Vandal: Yeah, absolutely. As you say, particularly in the last couple of years veganism seems to be quite quickly on the rise and there is actually an ongoing case testing this very point as we speak. It's been pretty well publicized, not just in the HR place but also mainstream media because of the popularity that veganism is attracting at the minute.
Fraser Vandal: The case is actually listed for later this year and the claimant in that case is arguing that he is what he terms an ethical vegan. His position is that he doesn't simply just follow a plant-based diet but that he has a much wider philosophical belief about the relationship between humans and their interactions with animals.
Fraser Vandal: The case ties in with quite recent research that suggests almost half of people who identify as being vegan believe they have been discriminated against at work and only one fifth of employers, according to other research, offer vegan options in canteens. It should be pointed out that the employer in this case is saying the individual's dismissal had absolutely nothing to do with veganism but as Jonathan mentioned earlier on, this is a preliminary issue.
Fraser Vandal: It is entirely possible that we could still find the door open based on veganism and for the tribunal to hold that veganism, in this particular circumstance, is a philosophical belief that can potentially be protected.
Sarah Skeen: I think the case law and the upcoming cases, such as the one Fraser was just talking about, show quite how varied that definition of philosophical belief is and can be. I think what that means for you as an employer or as a HR professional is that it's just an area to watch out for and to make sure you're not being caught out on. Now of course, you're not going to lose a claim if you dismiss somebody who happens to be a vegan.
Sarah Skeen: If they have that philosophical belief, then they may try to assert that their dismissal was because of that or linked to it in some way. If you are caught out, it could be costly, given that as a reminder, discrimination compensation is uncapped. It's one to keep an eye out for I think.
Jonathan Rennie: Yeah. Definitely. I think in practice, the point to think about is ensuring that the reaction of HR and managers is a strongly held belief is a strong, objective one. I think in my experience dealing with clients, there can be a tendency to think that an employee with a fundamental belief is somehow being difficult or deliberately awkward simply by reason of them being assertive about those beliefs.
Jonathan Rennie: If this does come up in practice, I think it's absolutely worth HR and contact, taking the time to listen and understand the employee's position even if you don't agree with it, rather than making fast assumptions and preferring one interest over another. In this regard, having clear policies about how your business handles discrimination and billing at work, will be really, really important.
Jonathan Rennie: We're now going to take a look at the issue of what happens when there is a conflict between certain characteristics that are protected under the Equality Act. This quite often comes up when religious or philosophical beliefs conflict with another protected characteristic. By now, most of you will have heard about the so called gay cake case where a Christian bakery in Northern Ireland refused to produce a cake containing a message in support of gay marriage and there have been other examples of this in recent time. Fraser, I think you can tell us a little bit about the rugby case, for example.
Fraser Vandal: Yeah, absolutely. There's a case that's received quite a high level of press coverage in the UK. As we said earlier, it's not a UK case. It's not one that's governed by the Equality Act but the principles of it resonate quite well with the UK legislation. It really is to the now former Australian Rugby player Israel Folau. He is a devote Christian and posted on his Instagram, and I quote, "Hell awaits drunks, homosexuals, adulterers, liars, fornicators, thieves, atheists and idolaters."
Fraser Vandal: Now, in the UK, because sexual orientation is a protected characteristic under the Equality Act, that's where the vast majority of the focus of these comments has been placed. This type of case just shows the type of tensions that can potentially arise. If you look at it in the abstract, it's clear to see why, because on the one hand, religion and belief is a protected characteristic under the act.
Fraser Vandal: Individuals should not be less fairly treated because of their religion or belief. Folau was a devote Christian. If you look at it from the other perspective, sexual orientation is protected. When you have areas like this where there is a fundamental conflict between these characteristics, it quite easily becomes an area that's difficult to rationalize and practice. Sarah, how have you seen this develop?
Sarah Skeen: I mean, you're right. It really is a difficult area. As you say, it's one that's inevitably going to leave one party dissatisfied. Ultimately though, although the law does protect those who hold religious beliefs, it doesn't give them car blanche to express those beliefs, regardless of the impact those beliefs might have on others and it's certainly possible that the expression of certain religious views in the workplace could amount to unlawful harassment.
Sarah Skeen: It would be reasonable then, for an employer to take action, if that was the case. There will inevitably be a very delicate balance to be struck and human rights issues could be brought into play. There's also a danger, I think, of creating a hierarchy of protected characteristics. Effectively suggesting that some protected characteristics are more worthy of protection than others. Which certainly isn't what the Equality Act intends.
Sarah Skeen: It's that interaction, I think, between religious views and homosexuality, where this crops up most regularly in the cause. We've seen cases where a Christian registrar was dismissed for refusing to carry out his duties in relation to conducting civil partnerships. That dismissal was found to be non-discriminatory because the registrar's approach to this conflicted directly with the employer's equality policies so that dismissal was fair and non-discriminatory.
Sarah Skeen: There was also a similar case where a Christian relationship counselor was dismissed for refusing to provide sexual counselling to same sex couples. Again, this was non-discriminatory in the view at the tribunal. The employer had pledged an equal opportunity's view to the public and the counsellor's position was contrary to that. Now, that's not to say that all cases have necessarily been found in favour of the employers. Indeed, there was a tribunal case where a Christian was found to be discriminated against for expressing her views on homosexuality, to a lesbian colleague.
Sarah Skeen: I think that case can be slightly stood apart because the issue was that the employee was dismissed on the basis of their beliefs rather than the inappropriate manifestation of those beliefs. What I mean by that is, if you have employees inappropriately manifesting their beliefs, such that they are harassing or discriminating against others, it is appropriate to take action in those cases, following your own policies and whilst remaining sensitive of others.
Sarah Skeen: It can be difficult in practice. You don't want to prefer one interest over the other and having clear policies will certainly help you in that regard.
Jonathan Rennie: I think the rugby case there was really one there where social media heightened the focus on the discrimination issues. Certainly often, when clients get in touch with me around discrimination and competing beliefs, it is because they have identified some form of social media posting. Obviously, sport's an area where employment and discrimination issues come to the fore and that is in part because of that social media and profile phenomenon and of course, social media can be quite compelling evidence in many employment discrimination cases.
Jonathan Rennie: Again, the practical point being that full investigation of all of these context of such postings should be carried out by HR teams to get the fullest picture before rushing to take decisions here.
Sarah Skeen: Absolutely. Whether you're a high profile sportsperson or just a normal person like the rest of us, what you say on social media can and does, in my experience, really often, form the basis of a discrimination claim in the workplace and employers need to be very aware of that.
Fraser Vandal: I think the real crux of the issue on this particular topic is, whether or not restricting how someone can voice their beliefs or the action that an employer takes for expressing their views on a particular topic, can be justified. That essentially comes down to whether an employer's response is a proportionate one. Has an employer balanced the rights of everyone, applied their policies in a fair and proportionate manner to achieve the outcome?
Sarah Skeen: Yeah. This is an area where the cases are won and lost, was an employer's reaction a proportionate one? It's the legal test but really, we're looking at it practically and saying, "Are you being balanced in the way that you're handling these issues?"
Jonathan Rennie: Thanks very much both. I think as we've discussed there, this can be a tricky area in practice and it'll be very interesting to see if this idea of a hierarchy of protections under the Equality Act actually develops over time, which I think it might very well do. Finally, we'd asked you to send in your questions during our last episode and we're going to finish up by looking at a couple of those.
Jonathan Rennie: Just as a little reminder, you can submit your questions to email@example.com or please do Tweet us using the hashtag @TLTEmploymentPodcast and tagging @TLT_Employment. Any questions you submit, will of course, be addressed anonymously. Fraser, I have a question for you, which has come in. Obviously, we mentioned US style love contracts in our first episode and our listeners asked, "Is that actually really happening in the UK and if so, is it a sign of things to come with US influences into UK employment law?"
Fraser Vandal: I think it definitely is something that's happening. Clients, in my experience, aren't using the US term of love contract but we are definitely seeing an increase in relationships at work policies. A key focus on the policies that I have seen as this issue of a relationship between individuals who are at different levels of management or organisation's hierarchy. If there is a position where one individual could theoretically have power and influence over another, employers are keen to ensure that that is a fully consensual relationship and there's not influence being exerted.
Fraser Vandal: In terms of whether this is the start of US employment law infiltrating the system we have in the UK, I personally don't think so. The system of employment law here is very different to the system in the states. I think this is a pretty much one off.
Jonathan Rennie: That's great to hear. Sarah, we've also had someone ask for our thoughts on the Chancellor's announcement that he wants to increase the national minimum wage in the UK 9.61 pounder per hour, which would actually be the world's highest. What are you finding that employers are saying about that?
Sarah Skeen: Well, the national living wage, at the moment, is 8.21 pound per hour so we are talking about quite a sizeable jump here. If we're looking at someone working 40 hours across the week, that difference is nearly 3,000 pounds more per year gross. Now, I'm sure currently earning the living minimum wage would be delighted to hear this but we are hearing employers saying, "We can't afford this."
Sarah Skeen: It's very much out of step with previous wage increases. Employers are already facing an uncertain economy with low productivity. Our clients are telling us that they're already shouldering quite significant costs and burdens because of other employment law changes, specifically auto-enrolment and pension contributions rising.
Sarah Skeen: This actually, from their perspective, is just a step too far for business. We do sometimes see large organisations adjusting their wider benefits packages when basic wages go up. Some ancillary benefits can well be impacted. It's clearly more to this than just a question of basic hourly rates of pay.
Jonathan Rennie: Thanks for that. Yeah. Absolutely. I agree. It sounds like a wonderful idea in practice but business will no doubt be concerned about the additional cost that it will bring. That's all we have time for this episode. Thanks very much again, for joining us. We really appreciate hearing your feedback and your ideas for future episodes so please do take a moment to review and to share our podcast and to get back in touch with us. We'll be back in a few weeks when we will look at some common employment law issues that arise during the summer months.
Jonathan Rennie: Remember, please do subscribe to the podcast so you don't miss out. Until then, good bye. The information in this podcast is for general guidance only and represents our understanding of the relevant law and practice, at the time of recording. We recommend you seek specific advice for specific cases. Please visit our website for our full terms and conditions.
20 June 2019