I’m a political activist: don’t sack me!

Photo by Oprea Marius on Unsplash

Over the last few months, several of my blog entries have examined the impact of conduct or behaviour of employees which occur outside working hours. The focus of these blogs has largely centred upon social media use (or misuse if you prefer) by employees and the likely consequences of reputational damage which the employer might suffer. 

The overwhelming conclusion that visitors to this site should now have is that I take the view that what employees do in their private lives can have a significant impact on work-place relations. Yes, primarily we do  have rights to privacy, expression and association as enshrined in Articles 8, 10 and 11 respectively of the European Convention on Human Rights (amongst other things), but does this does not give us a blank cheque or free pass to behave badly or engage in downright  dubious activities outside working hours. In other words, our Convention rights are not absolute. 

I decided to write this recent blog entry on the back of a story which appeared in The Independent last month in conjunction with the lead up to the European Parliamentary elections held in Germany on 26 May 2019. It was reported that a German national – Dr Gunnar Beck – was a candidate for a far right political party in Germany called the AfD (the Alternative for Germany). 

Dr Beck is currently employed as a law lecturer at SOAS, University of London and many of his colleagues and the students were outraged when they learned that he was running as an AfD candidate for one of Germany’s seats in the European Parliament. There were calls for Dr Beck to be dismissed from his post at SOAS. 

As it happened, Dr Beck was one of 10 German MEPs elected for the AfD Party.

This story is a very good example of issues such as freedom of speech versus the employer’s duty to prevent discrimination and intolerance in the work-place. 

What should employers do if they stand accused of being complicit in the spread of extremist views or beliefs by one of their employees? It can be a very difficult call to make. 

A link to the story about Dr Beck as reported by The Independent can be found below:

https://edition.independent.co.uk/editions/uk.co.independent.issue.180519/data/8919156/index.html

Section 98(4) of the Employment Rights Act 1996 gives the right to dismiss employees (quite fairly) for misconduct – whether in the work-place or outside. 

Furthermore, we live in times where political extremism of all shapes is much more prevalent. Again, the Employment Rights Act 1996 gives employers – primarily agents of the State e.g. the Police and the intelligence services (and other sensitive posts) – the right to dismiss employees on national security grounds (see Home Office v Tariq [2011] and Kiani v The Secretary of State for the Home Department [2015]). Such a dismissal – even where the evidence against the employee in question might be fairly tenuous – would still constitute an automatically fair dismissal. 

Section 10 of the Equality Act 2010 does protect an individual’s philosophical beliefs, but this does not mean that all sorts of extremist views will necessarily be tolerated (or should be tolerated) by employers. 

In Redfearn v Serco t/a West Yorkshire Transport Services (2005) the  employer dismissed Mr Redfearn on health and safety grounds because of his membership of the racist British National Party (BNP). Redfearn’s political affiliations might lead to violence arising in the workplace. 

This was not the last word on the matter and Redfearn took his claim to the European Court of Human Rights on the basis that the then United Kingdom equality laws did not provide sufficient protection to individuals like him who suffered discrimination on grounds of their philosophical (political) beliefs.

In Redfearn v UK [2012] the European Court of Human Rights stated that Redfearn had been dismissed on account of his membership of the British National Party and this was an example of unlawful discrimination. This decision effectively ensured that the protected characteristic of a person’s philosophical beliefs (now contained in the Equality Act 2010) is capable of including political beliefs.

In Grainger plc v Nicholson (2009), the Central London Employment Tribunal stated that individuals seeking the protection of the law [now contained in Section 10 of the Equality Act] must prove that the belief was “a weighty and substantial aspect of human life and behaviour”

A belief which demonstrates “a certain level of cogency, seriousness, cohesion and importance” and this belief is ultimately “worthy of respect in a democratic society, [that it] be not incompatible with human dignity and not conflict with the fundamental rights of others”.

This would seem to rule out protection for extremist beliefs, but as Redfearn UK [2012] clearly established employers will have to tread carefully. Essentially, the upshot of Redfearn is that employees are entitled to hold views which a large group within society may well find abhorrent and objectionable, but nonetheless such views fall within the protected characteristic of philosophical beliefs. Turning now to the employee holding such views or beliefs, the European Court of Human Rights made it very clear that such individuals did not have a right to act on these beliefs. So, for a person such as Mr Redfearn, he undoubtedly espoused racist beliefs by virtue of his BNP membership, but critically he had never acted upon these during his employment by, for example, subjecting a person from an ethnic minority group to unlawful, less favourable treatment. 

In 2018, Councillor Christopher McEleny of the Scottish National Party took legal action against his former employer, the UK Ministry of Defence for alleged discrimination and constructive dismissal  by reason of his political beliefs. An Employment Tribunal Judge, Frances Eccles ruled that McEleny’s beliefs in Scottish independence should be treated as a philosophical belief in terms of Section 10 of the Equality Act 2010.

Whether McEleny ultimately wins his Employment Tribunal claim on what exactly motivated his ex-employer to act in the way that it did towards him remains to be seen. It is a decision or outcome in which many people are undoubtedly interested. 

Copyright Seán J Crossan, 5 June 2019

 

Veganism = Discrimination?

Photo by Ivana Milakovic on Unsplash

Regular readers of this Blog will be aware that several of my previous articles have examined whether veganism could be a protected characteristic (a philosophical belief) in terms of Section 10 of the Equality Act 2010.

We still await the decision of the London Employment Tribunal in relation to the case of Jordi Casamitjana v League Against Cruel Sports (lodged in December 2018) which will give us a first indication as to whether veganism is capable of being a protected characteristic in terms of the Equality Act.

A link to an article on the BBC website about Mr Casamitjana’s claim can be found below:

I saw this on the BBC News App and thought you should see it:

Sacked vegan claims discrimination in landmark case

A landmark tribunal will decide whether veganism is a “philosophical belief” akin to a religion.

In the meantime, Crossland Solicitors (an Oxfordshire based law firm) have carried out some really interesting research concerning the issue of vegan beliefs and work-place discrimination.

Nearly 1,000 employees and 1,000 employers took part in the research. The conclusions from this exercise are that nearly 45% of employees are of the opinion that they have experienced less favourable treatment due to their beliefs and nearly a third of respondents felt that they had been actively victimised by their employers because of their veganism. It seems to be the case that a large number of employers take the view that veganism is a fashion trend or a fad as opposed to an ethical and philosophical set of views which guides people in their daily lives.

Hopefully, the London Employment Tribunal will issue it’s decision in the very near future about Mr Casamitjana’s claim in order to provide some needed clarity to this area of the law.

A link to the research on Crossland’s website can be found below

https://www.crosslandsolicitors.com/site/cases/nearly-half-of-vegans-feel-discriminated-against-at-work

Copyright Seán J Crossan, 12 May 2019

The Vegan Athlete

Photo by Miika Laaksonen on Unsplash

Over the last few months, articles about veganism have cropped up pretty regularly on this Blog. It’s certainly a way of life for many people, but we still await a legal ruling from the Employment Tribunal as to whether it can be a protected, philosophical belief in terms of the Equality Act 2010 (see Casamitjana v The League Against Cruel Sports lodged at the end of 2018).

In any event, there still seems to be a lot of reservations about veganism as a lifestyle (and a philosophical outlook).

An interesting article appeared on the BBC News website about an athlete who had chosen to become a vegan. Many people criticised this decision (could a vegan compete successfully at this level?), but here’s a young man (Ross Mackay) who bases some pretty important life decisions around his vegan beliefs. Mackay is certainly experiencing and having to overcome a lot of prejudice when many in sporting circles emphasise the importance of meat as a source of protein in order to aid performance.

‘You can succeed as a vegan athlete’

After playing international tennis in his teens, Ross Mackay says he really learned about food when he became vegan.
The vegetarian cyclist

It reminded me of the reaction of many in Europe when the American cyclist, Jonathan or ‘Jacques’ Boyer started to compete in big races. In 1981, he was the first US rider to take part in the Tour de France, taking part five times and his best ever finish was 12th in 1983). Boyer was famously (or infamously – depending on your point of view) a vegetarian. To the French, Boyer’s US nationality was slightly less controversial than his diet (He didn’t eat meat and ate a lot of nuts and berries). Even his own directeur sportif (manager or head coach) Cyrille Guimard spoke of Boyer in slightly disbelieving terms – un marginal i.e. French for a hippy, an outsider or something approximating these attributes. As Ross Mackay would attest, it seems that attitudes in sport haven’t changed a lot in the intervening years.

A link to a short YouTube video where Boyer talks about his experiences of racing in Europe can be found below (Spoiler alert: Boyer refers to Lance Armstrong before he was exposed as a cheat).

Photo by Simon Connellan on Unsplash

Even Peter Sagan, 3 time Tour de France green jersey winner and 3 time world champion keeps his veganism fairly quiet.

Copyright Seán J Crossan, 21 April 2019

The trouble with veganism …

Photo by Kylli Kittus on Toimetaja tõlkebüroo: https://toimetaja.eu/

… is that it’s shameful and un-Australian according to Scott Morrison, Prime Minister of that country. The Australian Premier spoke as the country witnessed nationwide protests by vegans (Some of whom chained themselves to abattoirs, amongst other things). The protesters are, of course, attempting by their actions to highlight the issue of cruelty to animals.

Mr Morrision’s remarks are certainly two of the more interesting descriptions (criticisms) of veganism that I’ve heard uttered recently.

In a number of previous Blogs, I’ve discussed the possibility of veganism being regarded as a philosophical belief capable of being legally protected in terms of the Equality Act 2010. At the time of writing, we still await the decision of the London Employment Tribunal in the matter of Casamitjana v the League Against Cruel Sports (which was lodged in late 2018) as to whether veganism should be a legally protected, philosophical belief.

A link to the story from Australia can be found on the BBC News website:

Vegan protests: ‘Un-Australian’ activists arrested, PM Morrison says

Scott Morrison rebukes animal rights activists after dozens are arrested in nationwide protests.

A special report by Peter Egan for Sky News raises serious considerations about veganism.

Egan, a British actor who was well known to audiences in the 1970s and 1980s, is now a prominent animal rights activist and I think it can be fairly implied that he probably thinks veganism is an ethical choice which should be capable of respect in a democratic society. After all, in 2011, the Employment Tribunal decided that an animal rights activist who believed in the sanctity of all animal and human life held protected, philosophical beliefs (anti-fox hunting beliefs) and should not be discriminated as a consequence of them (see Hashman v Milton Park (Dorset) Ltd (t/a Orchard Park) ET/3105555/2009).

A link to Egan’s report for Sky News can be found below:

https://news.sky.com/story/i-visited-a-dog-meat-market-the-horror-keeps-me-awake-at-night-11684081?

A link to the Hashman judgement can be found below:

https://uk.practicallaw.thomsonreuters.com/Link/Document/Blob/I42aa7bb90c5511e498db8b09b4f043e0.pdf?targetType=PLC-multimedia&originationContext=document&transitionType=DocumentImage&uniqueId=27215574-54b1-4c5f-b839-6b11ecab733a&contextData=(sc.Default)

Copyright Seán J Crossan, 8 April 2019

The shameful secret: the vegan butcher

Photo by Max Delsid on Unsplash

Readers of this Blog will be aware of several, previous entries discussing whether veganism could be considered as a philosophical belief capable of protection in terms of the Equality Act 2010.

The London Employment Tribunal will decide later this year if veganism as a belief system should be a legally protected characteristic (see Casamitjana v League Against Cruel Sports lodged in 2018).

What about an individual who has decided to become a vegan? Could this conflict directly with his occupation? BBC Scotland reported on such a story about a butcher who had a secret – he had become a vegan. It sounds like an April Fool joke, but apparently it’s completely true:

The butcher who went vegan in secret

Brian Kavanagh worked in the meat industry for about 15 years before becoming vegan

Copyright Seán J Crossan, 1 April 2019

Veganism = human cruelty?

Photo by Jon Tyson on Unsplash

Regular readers of this blog will be aware of my interest in philosophical beliefs and whether these are capable of protection in terms of the Equality Act 2010. It seems to be an area of law which is being developed on a fairly regular basis – often with pretty surprising results.

The Employment Tribunal decided, for example, in Hashman v Milton Park (Dorset) Ltd t/a Orchard Park ET /3105555/2009 that a belief in the sanctity of both human and animal life could constitute a legally protected philosophical belief.

Several of my previous entries have looked at whether veganism could be a philosophical belief. This issue could soon be decided by the outcome of an Employment Tribunal case lodged at the end of 2018 (Casamitjana v League Against Cruel Sports).

What about anti-veganism? To be honest I’d never heard of this before, but a story on Sky News caught my attention:

Veganism is human cruelty’: Protester eats raw pig’s head outside vegan festival

http://news.sky.com/story/protester-eats-raw-pigs-head-outside-vegan-festival-11674741

A YouTuber going by the name of Sv3rige ate a pig’s head outside Vegfest, a vegan festival in Brighton to draw attention to his belief that “veganism is human cruelty”.

Sv3rige’s explained his motivation to Sky News:

We did it – it was eight of us – because veganism is malnutrition and you can’t get over 15 nutrients from plants and some of us are ex-vegans who got sick because of it.”

A crass publicity stunt or a genuine attempt to highlight someone’s deeply held beliefs?

Food for thought indeed!

Copyright Seán J Crossan, 26 March 2019

Braveheart?

Photo by Petia Koleva on Unsplash

In a previous post published on 22 January 2019 (Philosophical beliefs (or you’d better believe it!), I drew attention to the ongoing of Employment Tribunal case of Christopher McEleny against the Ministry of Defence.

Mr McEleny is an SNP councillor for Inverclyde and some time ago he ran for the Party’s Deputy Leadership post. In his day job, Mr McEleny was employed as an electrician by the UK Ministry of Defence at one of its sites in Beith, Ayrshire.

When his employer found out that Mr McEleny was running for the Deputy Leadership post, he claims that was pulled in to a meeting and grilled about his views on Trident amongst other things. He also had his security clearance revoked and was suspended. Although he was reinstated, Mr McEleny later decided to leave his job with the MOD.

Mr McEleny brought a claim under Section 10 of the Equality Act 2010 alleging that he had suffered direct discrimination on the grounds of his philosophical beliefs i.e. his belief in Scottish independence as a concept which forms and influences many of his decisions in life.

At a Preliminary Hearing in July 2018, the Employment Tribunal Judge ruled that belief in Scottish independence could constitute a philosophical belief which was capable of being protected under the Equality Act 2010. It should be noted that Mr McEleny was able to demonstrate that many of the decisions that he makes and the ways in which he chooses to live his life are firmly based on his belief in Scottish independence. It is important to appreciate that him merely being a member of the SNP was not enough: you have demonstrate that you live by your beliefs.

The Ministry of Defence disagreed with this finding and appealed. Employment Tribunal Frances Eccles has now considered the appeal and has decided that a belief in Scottish independence can constitute a protected characteristic for the purposes of the Equality Act 2010.

Mr McEleny’s claim must still proceed to a full Employment Tribunal Hearing in which he will have to demonstrate that he was subjected to unlawful discrimination by reason of his philosophical beliefs.

A link to an article about the latest turn in Mr McEleny’s case can be found below:

https://www.holyrood.com/articles/news/judge-upholds-ruling-belief-independence-protected-under-equality-law-religion

Copyright – Seán J Crossan, 12 March 2019