Philosophical beliefs (or you’d better believe it!)

Photo by Ross Sneddon on Unsplash

Unlike religious beliefs, which tend to be more easily recognised under the Equality Act 2010, a person’s philosophical beliefs can be something of a grey area This means that it can be very difficult for employers and service providers to identify when someone has a genuine belief which is protected by law.  

Section 4 of the Equality Act 2010 recognises that a person can be subjectedto unlawful, less favourable treatment (discrimination) owing to certainbeliefs which they possess.

Section 10 of the Equality Act defines religion and beliefs:

(1) Religion means any religion and a reference to religion includes areference to a lack of religion.

(2) Belief means any religious or philosophical belief and a referenceto belief includes a reference to a lack of belief.
(3) In relation to the protected characteristic of religion or belief—

(a) a reference to a person who has a particular protectedcharacteristic is a reference to a person of a particular religion or belief;

(b) a reference to persons who share a protected characteristic is a reference to persons who are of the same religion or belief.

In Lisk v Shield Guardian Co Ltd and others ET/3300873/11, anemployee was told that he was not permitted to wear a poppy while at work. Theemployee, an ex-serviceman, argued that by wearing the poppy he wascommemorating the sacrifices of those killed in armed conflicts. The EmploymentTribunal disagreed with the employee’s argument that his decision to wear apoppy while at work was a legitimate philosophical belief.

Yet, in earlier decision: Grainger plc v Nicholson (2010) IRLR 4the Employment Appeal Tribunal established that Nicholson’s belief in climate changecould constitute discrimination on the grounds of a philosophical belief.

Similarly, in Hashman v Milton Park (Dorset) Ltd (t/a Orchard Park) ET/3105555/2009 a prominent animal rights activist (Joe Hashman) was deemed to have been dismissed unfairly by his employer by reason of his philosophical beliefs i.e. his belief in the sanctity of all life, both human and animal.

Recently, some interesting cases have come before Employment Tribunalsdealing with the issue of philosophical beliefs.

In one case, Christopher McEleny an SNP Councillor won a pre-Hearing Review which established that a belief in Scottish independence could constitute a protected characteristic in terms of the Equality Act 2010.

In the second case, Jordi Casamitjana, has taken his former employer, the League Against Cruel Sports to an Employment Tribunal alleging that he had been subjected to discrimination on the grounds that he is a vegan. He alleged that he had been dismissed from his job because he had revealed that his employer had allegedly invested pension funds in organisations which carried out animal testing. At the time of writing (January 22, 2019), it remains to be seen whether Mr Casamitjana will be successful in his legal action.

Veganism, as a belief system which should be recognised and protected by law has divided opinion as the final BBC report demonstrates.

Independence views ‘protected by law’

https://www.bbc.co.uk/news/uk-scotland-scotland-politics-45075801

Support for Scottish nationalism should be protected by law, a tribunal judge rules against the Ministry of Defence.

Sacked vegan claims discrimination in landmark case:

https://www.bbc.co.uk/news/uk-46385597

Finally, the controversy over veganism as a belief system continues to attract headlines in the media as the BBC article (below) demonstrates:

Waitrose Food: Editor William Sitwell resigns over ‘killing vegans’ row

https://www.bbc.co.uk/news/uk-46042314

The company said his suggested series on “killing vegans one by one” had “gone too far”.

Conclusion

Mr McEleny’s case and Mr Casamitjana’s case clearly demonstrate the difficulties that employers will have when it comes to a person’s philosophical beliefs.

Copyright Seán J Crossan, 22 January 2019

Age discrimination?

Photo by Matteo Paganelli on Unsplash

Chapter 7 of Introductory Scots Law primarily focuses on the Equality Act 2010. Section 4 of the Act lists a number of protected characteristics:

  • age;
  • disability;
  • gender reassignment;
  • marriage and civil partnership;
  • pregnancy and maternity;
  • race;
  • religion or belief;
  • sex;
  • sexual orientation.

To treat someone less favourably as a result of their possessing any of the above characteristics could be an act of unlawful discrimination. The exception to this would be where the less favourable treatment might be objectively justified e.g. on the grounds of national security or health and safety.

The purpose of this post is to highlight potential age discrimination. Discrimination on the grounds of a person’s age became unlawful in 2006 when the UK Goverment passed the Employment Equality (Age) Regulations 2006. This measure implemented the European Union’s Equal Treatment Framework Directive (Council Directive 2000/78/EC). The relevant law is now, of course, to be found in the Equality Act 2010. Brexit aficionados might like to note that this EU inspired piece of legislation will survive the UK’s exit from the organisation until such time as the Westminster Parliament decides to amend or repeal the Equality Act 2010. This is just one example of how EU legislation is hardwired into the domestic legal framework of the United Kingdom and demonstrates how difficult it could be to disentangle ourselves from the European Union.

Anyway, legal technicalities aside: we often think of age discrimination being an issue which affects older people in society. An interesting example of how the issue can affect younger people was reported by the BBC on Saturday 19 January 2019.

The story concerns Xander McDade (aged 25) who was elected as a Councillor in the Perth and Kinross local authority. McDade claims that he has suffered persistent age discrimination from some of his colleagues on the Council. The Chief Executive of Perth and Kinross Council has publicly stated that the Council does not tolerate discrimination and anyone who thinks that they have been less favourably treated should come forward to make their concerns known.

Perth and Kinross councillor accuses colleagues of ageism

Since being elected to office at the age of 23, Xander McDade claims he has been the butt of ageist jokes.

Just as a point of contrast, please see a link to a story from the other side of the age gap which Sky News reported in November 2018:

Woman, 88, sues NHS for age discrimination after losing job as secretary
http://news.sky.com/story/woman-88-sues-nhs-for-age-discrimination-after-losing-job-as-secretary-11563098

Copyright Seán J Crossan, 21 January 2019

Employment Status

Photo by Rob Gonyea on FreeImages (rob_gonyea@yahoo.com)

Welcome to the first entry on this blog, which runs in conjunction with my book, Introductory Scots Law: Theory & Practice (3rd Edition: 2017). The purpose of the blog is to highlight current stories of interest and/or points for discussion.

I thought that I would begin by drawing readers to an employment law story. Those of you who are familiar with Introductory Scots Law will already know that Chapter 6 covers Employment Law. In this chapter, the topic of a person’s employment status is discussed. It’s often a difficult area for both lawyers and lay people to get their heads around. The key question can often be reduced to this: does the individual have a contract of service or a contract for services?

If you have a contract of service (or employment), you are often in much a stronger position legally speaking because you either have employment rights or the potential to access employment rights as you build up your continuity of service. Significantly, employees have the right (potentially) to claim unfair dismissal; claim a redundancy payment; be consulted about changes which their employer is going to make; access maternity and paternity rights. People working under more casual arrangements, for example, zero hours contracts or the genuinely self-employed will not be entitled to such employment rights.

The story which I wish to focus on concerns Jess Varnish, the ex-Team GB cyclist. Ms Varnish wished to pursue an Employment Tribunal claim for wrongful dismissal and sex discrimination against British Cycling and UK Sport. The legal action by Varnish has been dismissed by the Employment Tribunal on the basis that she was not an employee or even a worker of British Cycling or UK Sport. This decision, in common with many other cases over the years, demonstrates the ability of a person to claim certain legal rights depends very much on her employment status. Quite simply, Jess Varnish was never an employee and that is why her claim failed.

Please see below the link to the story on the BBC website:

Jess Varnish: Cyclist loses employment case at tribunal

Ex-GB cyclist Jess Varnish fails in her attempt to prove she was an employee of British Cycling and UK Sport at an employment tribunal.

Copyright Seán J Crossan, January 2019