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Range of Reasonable Responses Newsletter: January 2020

I'm writing this on the day the UK leaves the EU. From an employment law point of view (I see everything from an employment law point of view) the main point to note that is that nothing changes. The Withdrawal Act 2018 provides for a standstill transition running to December 2020 and during that time our employment law will continue as before. TUPE, The Working Time Regulations and other employment rights based on EU directives continue to apply and the courts must continue to interpret them in so as to comply with EU law as interpreted by the European Court of Justice. Even when the transition ends, that does not automatically bring about any change in this approach (let's ignore the technical changes to the rules of European Works Councils as I rarely meet anyone who cares).

From January 2021 Parliament will in theory be able to make changes to the laws based on EU directives. What changes can be made in practice will depend on the nature of the trade deal that is done in the meantime. It is likely that for any meaningful access to the single market the EU will insist on 'level playing field' provisions which will involve a commitment from the UK Government to maintain regulatory standards in areas such as consumer protection, environmental regulation and employment law. The extent to which the Government will be willing to sacrifice market access in order to have the freedom to diverge from EU standards is likely to be the key political question of the year. For now, however, employment law will continue as though nothing significant has happened.

Vegans and the Equality Act

We now have the Tribunal judgment in Casamitjana Costa v League Against Cruel Sports - the case in which a Tribunal held that the employee's ethical veganism was capable of amounting to a philosophical belief protected by the Equality Act. The result is not a surprise. When the case was first brought I wrote a blogpost entitled 'Of Course Vegans are Protected by the Equality Act!' - so frankly I'm relieved the Tribunal ruled as it did. There will be no appeal on the issue because the employer did not contest the matter. it only went to a hearing because the question concerned whether the Tribunal had jurisdiction to hear the case at all - which was not something that the parties could just agree between themselves.

In my post, however, I was very sceptical that the claim would ultimately be successful. It is one thing to show that you have a belief - it is quite another to show that your belief was the reason you were dismissed. After all, how likely is it that the League Against Cruel Sports have got it in for vegans? They are arguing that they dismissed the employee not because of his beliefs but because he was giving unauthorised financial advice to employees. Essentially he was telling them that their pension scheme was not meeting the right ethical standards when it came to its choice of investments. If that is the only reason for dismissal then there is no discrimination provided the employer can say that any employee - whatever their individual beliefs - would have been treated the same way as a result of such behaviour.

But the solicitors representing the employee have very helpfully put the details of his claim online and you can read the submissions made to the Tribunal here. They quote the dismissal letter as saying that the email the employee had sent to staff was 'biased because of [his] ethical principles' and that 'based on your understanding and belief' the employer believed that he would act in the same way again. This is only a partial extract of course - and the merits of the case are yet to be heard. Nevertheless the fact that the dismissal letter actually referenced the employee's beliefs puts the whole case in a different light. The argument could be made that the employer felt that the strength of the employee's beliefs meant that he would persist in his behaviour whatever instruction or warning he was given. If that was their reasoning then that is basically direct discrimination. We will wait and see, but I now think I would rate this case as a likely win for the claimant.

As for the wider implications of the case, I don't think that this is something that employers need to worry too much about. I wrote about some of the issues that might arise in my regular bulleting for West Midlands Employers, which you can read here.

Transgender Rights and Philosophical Beliefs

A much more controversial Tribunal decision about the scope of philosophical beliefs is Forstater v CGD Europe. Here the Tribunal ruled that the beliefs of a gender critical feminist, who asserted the importance of biological sex over gender identity and maintained that transgender people remain at a fundamental level of the same biological sex as they were born with did not amount to a protected philosophical belief. The arguments on this issue are rather technical and nuanced, if I have not quite captured the beliefs held by Ms Forstater then don't @ me! (as I believe young people now say).

The point is that the Tribunal held that her beliefs were not protected by the Equality Act because they were inconsistent with the rights of transgender people to be recognised as having changed sex. I pointed out in the blogpost I wrote immediately following the decision that there is a certain logic to this. The rights of transgender people have been specifically recognised by the European Court of Human Rights and the guidelines for deciding what beliefs are protected by the Equality Act - set out by the EAT in Grainger v Nicholson - also have their origins in ECHR case law.

The more I have thought about this case, however, the more unhappy I have been with the whole idea of limiting the scope of protected beliefs to those that are 'worthy of respect in a democratic society' as the Grainger guidelines put it. It is the expression of beliefs rather than the mere holding of them that has the potential to harm others and limitations on such expression are likely to come within the scope of indirect rather than direct discrimination. The employer will then have the option of showing that its actions were a proportionate means of achieving a legitimate aim and it is here that the question of whether the beliefs conflict with he rights of others can best be considered. Given that, I really don't see the need to limit the scope of protected beliefs in the way that Grainger requires. The Equality Act says that 'any religious or philosophical belief' is protected and it seems strange to me that the scope of that protection could be limited by the ECHR case law.

I have written a piece for XpertHR that goes into rather more detail about this and will share a link to the article when it is published. It is all very difficult and not surprisingly, an appeal has already been lodged on behalf of Ms Forstater with the Employment Appeal Tribunal. I suspect that we will be returning to this case before the year is out.

Equal Pay and the BBC

Since we are looking at recent ET decisions it is worth noting the case of Samira Ahmed v BBC in which the presenter of Newswatch successfully claimed equal pay with Jeremy Vine, the presenter of Points of View. The decision is remarkable principally for how awful the BBC's case seems to have been. But it is a good example of how an equal pay claim works and what the key issues are - it's worth a read.

A lot of the press on the case has focussed on the sheer scale of the difference between the £440 that Samira Ahmed got for each episode of Newswatch and the £3,000 per episode of Points of View paid to Jeremy Vine. But it is important to remember that an equal pay case such as this is an all or nothing claim. Samira Ahmed had to show that her work was equal to Jeremy Vine's work. If it were not equal then she would have lost. There would be no room for arguing that her work was worth two thirds of his and so should have attracted at least two thirds of the pay.

And it is the work that must be equal - not the product. Points of View was once an important feature of Sunday television - I remember when it was presented by Barry Took and it even warranted a sketch on Not the Nine O'Clock News. Newswatch - not so much. But what the Tribunal rightly concentrated on was not the nature of the programme but the work that the presenter did in presenting it. Since each was basically reading a 15 minute prepared script to camera - it is not surprising that they found that the presenters were employed on 'like work'.

The burden then shifted to the BBC to explain why Jeremy Vine was paid more. The problem they faced was that in the absence of clear and transparent pay structure they couldn't really explain why it was decided to pay Jeremy Vine so much - except that it was the sum he had asked for. You could make a case that as he was a more recognisable public figure his appearance commanded a premium, but the Tribunal was not interested in a post hoc rationalisation of the pay difference. They wanted to see evidence of why the decisions were actually made. On this point the BBC had very little to offer.

When I'm talking to clients I regularly make the point that the most important thing in employment law is to be able to explain how and why you have reached the decisions you have made. As I was told so often about my maths homework, you have to be able to show your working out. This case is a good example of what can go wrong if you can't do that.

As a small niggle, it is clear from the Tribunal's decision that for a good part of the period covered by the Equal Pay claim both Samira Ahmed and Jeremy Vine were 'employed' through personal service companies. That means that the BBC's contract was with a limited company rather than with the individual journalist. It seems to me that in the absence of a finding that the arrangement was a sham (and the Tribunal does not suggest this) then neither of them can be said to be 'in employment' for that period and their relative rates of pay should not be covered the Equality Act. I can see why the BBC would not want to draw attention to this point - winning on that technicality would not be a good look. But it is perhaps a point to bear in mind for some of the other cases the BBC faces.

Parish Notices

On 13 February I will be speaking at the annual employment law conference run by the Local Government Association. For those in local government HR this is a great day to talk about the employment law issues that affect you the most and it is always a lively session with lots of questions. There are still some places available I think and you can book here:

Then on March 11 I will be running a full Employment Law Update for local Government HR people in the East Midlands - visit their website to book a place. I am also excited to be chairing the D&I Leaders Equality Law at Work conference on 31 March, marking the first 10 years of the Equality Act. There is a really great line up of speakers - so much so that the organisers obviously decided that it didn't matter much who the chair was. If you can make it to any of these events do say hello!

For any real employment law nerds I have also added a few new episodes to my podcast series on classic employment law cases: https://darrennewmanpodcasts.com/ That is turning into quite an extensive collection. I could almost turn it into a book (now there's a thought).

Thanks for subscribing. Don't forget that to find out more about what I do you can visit my website: https://darrennewman.org/

Cheers

Darren