Today seems to be something of a red letter day for the Blog with regard to the issue of protected philosophical beliefs in terms of the Equality Act 2010.
We have already heard the news that Jordi Casamitjana has won the part of his Employment Tribunal claim that his ethical veganism is a philosophical belief in terms of Sections 4 and 10 of the 2010 Act (see Casamitjana v League Against Cruel Sports ).
It was some interest that another news item popped up today concerning allegations that Amazon stands accused of threatening to dismiss those of its employees who become involved in climate protests. I would hazard a guess that Amazon is making a statement of intent that it may dismiss employees who perhaps break the law when they are involved in climate protests such as those organised by Extinction Rebellion and other similarly minded groups.
Criminal acts by employees committed outside the workplace could be regarded as gross misconduct in terms of Section 98 of the Employment Rights Act 1996. In other words, such behaviour by employees could result in the employer suffering reputational damage and, consequently, any dismissal for misconduct could be potentially fair. That said, employers should always carry out the proper disciplinary procedures when contemplating dismissal as the ultimate sanction for employee misbehaviour.
The real gripe – according to Amazon Employees for Climate Justice – is that the tech company allegedly objects to employees speaking critically about its failure to be more environmentally responsible.
Yet, there are potential dangers here for Amazon in the UK. In Grainger plc v Nicholson (2010) IRLR 4, the Employment Appeal Tribunal established that an employee’s belief in climate change could constitute discrimination on the grounds of a philosophical belief.
So, we could have situation where Amazon employees who are taking part in quite peaceful and lawful climate change protests end up being dismissed. This would open up the possibility that employees of Amazon UK might have the right to bring claims for direct discrimination (Section 13: Equality Act 2010) in respect of their philosophical beliefs (Sections 4 and 10 of the Act).
In the USA, there could be even more serious legal implications – infringing the right to free speech which is protected under the Constitution.
Perhaps Amazon needs to go back to the drawing board …
A link to an article on the BBC News App can be found below:
Several of my previous blogs (It happened outside work … (or it’s my private life!) published on 7 February 2019; Social Media Misuse published on 11 April 2019; and Social media and dismissal published on 20 May 2019) have addressed the issue of whether employees have a right to privacy in the work-place.
The short answer is yes and no: privacy is not an absolute right.
Privacy in the work-place is becoming more of an issue thanks to the widespread use of social media by employees outwith working hours (and, of course, during the working day).
If you’re working in the public sector (and this, potentially, covers a large number of employees), Article 8 of the European Convention on Human Rights i.e. the right to family and private life could be particularly relevant to your situation.
Even if you’re employed by a private sector organisation, Article 8 rights are still relevant because they are ultimately guaranteed by the State (the United Kingdom) as a signatory to the European Convention. Furthermore, there are all sorts of situations where private sector organisations may be regarded as ’emanations/entities of the State’ because they carry out some type of work or provide a service which is beneficial to the wider public (think utilities companies or those organisations which benefit from outsourced contracts from local and central government).
Regular readers of this blog will know, of course, that provisions of the European Convention have been incorporated into Scots Law via the Scotland Act 1998 and the Human Rights Act 1998.
Employers, quite rightly, may have legitimate concerns about the type of content or statements that their employees post on social media platforms – especially if such material could cause the organisation to suffer some sort of reputational damage.
In such circumstances, it’s simply not a competent defence for employees to argue that disciplinary action (up to and including dismissal) which might be taken by their employers represents unwarranted interference in their private lives.
That said, it is very important for employers to set out clear guidelines and policies covering social media (mis)use by employees during and outwith working hours. There is a balancing exercise to be had here between the legitimate interests of the employer and the employee.
So, it was with some interest that I read about a case before the Outer House of the Court of Session during the summer which dealt with the boundaries of employee privacy (see Petition of B, C and Others v Chief Constable Police Service of Scotland and Others  CSOH 48).
Lord Bannatyne rejected the Petition for judicial review lodged by a number of serving Police Scotland officers who were accused of (non-criminal) misconduct by their employer. These officers had allegedly used the WhatsApp social media platform to exchange a number of messages between them which were deemed to be offensive in nature and not in keeping with their role as serving members of Police Scotland.
Police Scotland wished to access the content of these messages in order to progress the misconduct hearings, but the officers involved in the disciplinary investigation argued that this constituted a breach of their human rights – specifically their rights to privacy Article 8 of the European Convention on Human Rights. More generally, the officers were also arguing that they had the right to privacy at common law.
His Lordship highlighted the significance of the important decision of the European Court of Human Rights: Von Hannover v Germany  40 EHRR 1 to the case before him.
Von Hannover raises three important considerations:
“… the width of the concept of private life; the purpose of Article 8, i.e. what it seeks to protect; and the need to examine the particular circumstances of the case in order to decide whether, consonant with that purpose, the applicant had a legitimate expectation of protection in relation to the subject matter of his complaint.”
The key issue which Lord Bannatyne identifies from Von Hannover, is whether the Scottish police officers “had a legitimate expectation of protection” in terms of Article 8; or to draw upon a phrase later formulated by UK Supreme Court Justice, Lord Toulson: “a legitimate expectation of privacy” (see In re JR38 2016 AC 1131).
In rejecting the officers’ petition, Lord Bannatyne focused on the existence of the Standards of Professional Behaviour contained in Schedule 1 to the 2014 Regulations to which all serving Police officers must adhere (in particular the officers had sworn an oath to uphold these Standards both while on and off duty).
His Lordship stated:
“There is a restriction on police officers’ private life and therefore their expectation of privacy. … It is only in relation to these matters that there is a limitation on the officer’s privacy it is not a whole scale intrusion into his private life. Accordingly to achieve the underlying purpose of the Standards, namely: the maintenance of public confidence in the police, police officers have a limitation on their expectation of privacy as above described.“
A link to Lord Banntyne’s judgement can be found below:
A link to how the story was reported by BBC Scotland can be found below:
As a point of interest, several days after Lord Bannatyne’s judgement was reported, the BBC carried a story about United States Border Patrol officers who were suspended from employment for posting offensive remarks about migrants (and other individuals) on Facebook.
A story which caught my eye over the last few days comes from the fair Canadian City of Toronto and involves misconduct dismissals. For a change, the dismissals do not involve social media misuse, but rather good old fashioned fraud.
150 members of staff working at a Toronto hospital were sacked for involvement in a sophisticated prescription fraud which was reportedly in the region of £3 million over an 8 year period. Defrauding your employer is, of course, an extremely serious breach of trust which materially undermines the contract of employment.
Interestingly, at this point, the Police in Toronto have not charged any individual with the crime of fraud – yet – but clearly the employer feels that it has sufficient grounds to go ahead with the dismissals.
I often to say to students that the employer merely has to have a reasonable suspicion that the employee has committed an act of misconduct. There is no need for the employer to demonstrate that the allegation(s) of misconduct meets the criminal standard of proof.
A link to the story on the Sky News website can be found below:
Had this story occurred in the UK, we would be talking about the matter in the context of Section 98(4) of the Employment Rights Act 1996. If employers can show that the reason for the dismissal of employees is justified i.e. on the grounds of misconduct (fraud), it will be a fair dismissal. As a point of good disciplinary policy, of course, employers should always follow the proper procedures when deciding to dismiss employees on the grounds of dismissal.
An interesting article appeared in today’s Independent about a campaign to encourage Waterstone’s, the well known high street book retailer, to pay staff the Living Wage.
As I often say to my students, when discussing the issue of pay, it is a hugely emotive issue – especially if you happen to be at the lower end of the wage scale and have difficulty getting your proper entitlement.
The idea of the employee or labourer being worthy of his or her hire is a deeply ingrained cultural norm in European and North American societies (largely underpinned by many scriptural references in both the Old and New Testaments of the Christian Bible e.g. Deuteronomy 24: 15 and Matthew 20: 8).
The employer, of course, has a contractual duty to pay her employees in return for them providing services.
“Paying the living wage also makes sense from a business perspective. The Living Wage Foundation said that 93 per cent who paid the wages had seen benefits in retention and motivation of staff, and company reputation.”
As the Living Wage Foundation emphasises the real Living Wage is £10.55 for those working in London and £9 for those working across the rest of the UK. As we shall see, the UK Government introduced its own version of the Living Wage in 2016, but this is less generous. This was effectively a higher National Minimum Wage rate for people aged over 25.
As the Foundation states:
“The real Living Wage rates are higher because they are independently-calculated based on what people need to get by. That’s why we encourage all employers that can afford to do so to ensure their employees earn a wage that meets the costs of living, not just the government minimum.”
A link to the website of the Living Wage Foundation can be found below:
The introduction of the National Minimum Wage Act 1998 ensured that workers must receive a basic hourly wage depending on their age.
One of the most important changes to the National Minimum Wage Scheme since February 2005 is the inclusion of young workers i.e. young persons aged 16 and 17 years old. Previously, these individuals were not covered by the National Minimum Wage Act 1998. The British Government, however, finally accepted the recommendation of the Low Pay Commission that the Scheme should be extended to young workers.
The Living Wage
In many respects, the debate about the National Minimum Wage has moved on from the late 1990s when organizations such as the Conservative Party, the Confederation of British Industry and the Institute of Directors were uniformly hostile to its introduction by the first Labour Government of Tony Blair (1997-2001) on the grounds that immense damage would be done to the British economy. These fears were not realized and the minimum wage has become an accepted feature of British employment rights. The debate concerns the introduction of the Living Wage.
The Living Wage Foundation actively calls on employers to pay an enhanced income ensuring a basic standard of living. The Labour Party had promised to introduce a Living Wage if elected to form the next UK Government in 2015 and it was thought that, with the Party’s defeat at the last General Election, the idea would be placed on ice during the next Parliamentary term. It was therefore somewhat surprising when George Osborne, the former Conservative Chancellor of Exchequer announced, during his 2015 Autumn Statement, that the Coalition Government intended to introduce a National Living Wage in April 2016.
From 1 April 2016, under the National Living Wage, employers had to pay workers over the age of 25 (and who are not in the first year of an apprenticeship), a minimum hourly rate of £7.20. These individuals must work 2 or more hours a day for 8 or more consecutive weeks of the year. There was no requirement to pay the National Living Wage to volunteers, interns and apprentices – as well as contractors on the supply side. Critics of the Coalition Government were quick to point out that the statutory rate was less than what was understood by the real Living Wage recommended by the Living Wage Foundation (i.e. £7.85 per hour or £9.15 inside London). The Coalition Government had stated that it was committed to raising the National Living Wage by 2020.
From 6 April 2019, the National Minimum Wage will rise from £7.83 per hour to £8.21. The real Living Wage for 2019-20, however, has been set at an hourly rate of £9 outside London and £10.55 inside London.
Employers who refuse to pay the National Living Wage will face enforcement action similar to that already carried out in relation to the National Minimum Wage.
There is no doubt that the Living Wage is an idea whose time has come. It is worth noting that many employers already pay their workers the real Living Wage on a voluntary basis and proudly publicise this fact.
The concept is not without its critics and the BBC reported on 1 April 2016 that the independent Office of Budget Responsibility had calculated that as many as 60,000 jobs could be lost as a result of its introduction. As we have discussed, similar claims in the late 1990s were made about the introduction of the national minimum wage and these proved to be largely groundless.
The positive impact of the National Living Wage seems to be supported by research carried out by the Ulster University Economic Policy Centre. In Northern Ireland alone from 2020 onwards, 128,000 people will benefit from a pay increase due to the National Living Wage being increased.
More than 128,000 in NI will get a pay rise by 2020 due to the National Living Wage, study suggests.
The Low Wage Commission published research at the end of April 2019 showing that the number of workers who do not receive the national minimum wage increased in 2018. A link to the Commission’s report can be found below: