07/10/2019

Employment Eye October 2019

Welcome to our latest round-up of recent employment law developments and what they mean for you.

Featured case

Does veganism constitute a ‘belief’ under the Equality Act 2010?

Ashley Norman reports on whether veganism constitutes a belief following Jordi Casamitjana v League Against Cruel Sports.

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Featured case

Whistleblowing: Reasonable belief in public interest?

Alastair Currie looks at the question of when it could be said that an employee’s belief that a disclosure is in the public interest is reasonable within the meaning of whistleblowing legislation.

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Briefing

IR35 in the private sector – preparing for April 2020

Julian Hoskins reports on steps to be taken by employers in the private sector in preparation for the introduction of changes to IR35 tax rules from April 2020.

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News round-up

The Good Work Plan and the NHS People Plan – themes for change

James Gutteridge looks at key themes of The Good Work Plan and NHS People Plan.

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Does veganism constitute a ‘belief’ under the Equality Act 2010?

The Equality Act 2010 (‘the Act’) protects employees and workers against discrimination, harassment and victimisation in respect of certain protected characteristics including ‘religion or belief’, which covers philosophical beliefs. The issue of whether veganism constitutes a philosophical belief under the Act has divided opinion in recent months since an ex-employee of an animal welfare charity brought a discrimination claim against his ex-employer on this basis in Jordi Casamitjana v League Against Cruel Sports, the preliminary hearing for which is due to be heard in mid-October 2019 in the Employment Tribunal.

The issue is an important one for employers because, if veganism does constitute a belief, not only will they need to ensure that vegan employees are not subject to less favourable treatment, victimisation or harassment, but it could also extend to employers being required to offer alternatives to animal-based products (in circumstances where where food is provided).

Guidance on what constitutes a ‘belief’

The Equality Act 2010 Statutory Code of Practice (‘the Code’) provides the following insight as to what constitutes a belief under the Act.

“A belief which is not a religious belief may be a philosophical belief.

A belief need not include faith of worship of a God or Gods, but must affect how a person lives their life or perceives the world.

For a philosophical belief to be protected under the Act:

- It must be genuinely held;
- It must be a belief and not an opinion or viewpoint based on the present state of information available;
- It must be a belief as to a weighty and substantial aspect of human life and behaviour;
- It must arraign a certain level of cogency, seriousness, cohesion and importance;
- It must be worthy of respect in a democratic society, not incompatible with human dignity and not conflict with the fundamental rights of others.

Manifestations of a religion or belief could include treating certain days as days for worship or rest; following a certain dress code; following a particular diet; or carrying out or avoiding certain practice.”

The Code confirms that manifestations of a belief could include following a particular diet or carrying out/avoiding certain practice. As the practice of veganism includes abstaining from the consumption and use of animal products, it could fall well within the definition.

The Code also specifies that to be protected under the Act a philosophical belief must be genuinely held and not just “an opinion or viewpoint based on the present state of information available”. This suggests a subjective element and allows scope for “belief” to be assessed on an individual case-by-case basis. In particular, a distinction could be drawn between “dietary vegans” on the one hand and “ethical vegans” on the other hand who argue that veganism is a philosophy about the rights and dignity of animals which goes beyond just an eating habit.

Veganism as a protected characteristic

Interestingly, veganism has long been held to be a philosophy which falls within Article 9 of the ECHR (H v United Kingdom (1993) 16 EHRR CD 44 and W v United Kingdom (Application 18187/91) (10 February 1993, unreported)).

In addition, in December 2016 the Equality and Human Rights Commission published guidance called “Religion or Belief: a guide to the law”, which states:

The Human Rights Act 1998 says that all public authorities and other bodies carrying out public functions, such as care services, have to act consistently with the European Convention of Human Rights. One of these rights, Article 9, protects freedom of thought, conscience and religion. It protects all religions and a wide range of philosophical beliefs including atheism, humanism, agnosticism, veganism and pacifism.”

Public bodies are bound by the duty under section 6 of the Human Rights Act 1998 to act compatibly with a person’s rights under the ECHR, which is an important reason why they should make reasonable efforts to accommodate the philosophical beliefs of vegan employees.

Jordi Casamitjana v League Against Cruel Sports

Mr Casamitjana was dismissed from his role at the League Against Cruel Sports (LACS) and believes that his dismissal amounted to discrimination on the grounds that he was a vegan. Within his role, Mr Casamitjana disclosed that LACS was investing its pension funds into firms involved in animal testing. He has alleged that, as a result of this disclosure, he was unfairly disciplined and dismissed.

A preliminary hearing in this case was heard in March 2019, in which the Tribunal decided that a further preliminary hearing would be required to determine the issue of whether veganism constitutes a protected characteristic under the Act. This will be heard in mid-October, and whilst its decision will not be binding on other tribunals, it will provide a useful insight into how they approach the issue of religion or belief claims based on vegetarianism.

 It is possible that veganism will be held to constitute a belief, particularly in light of the guidance contained in the Equality Act 2010 Statutory Code of Practice and published by the Equality and Human Rights Commission and the increase in veganism as an ethical philosophy in recent years. This will most likely apply on a case-by-case basis, as not all vegans necessarily hold a philosophical belief for the purposes of the Act.

Until there is further clarification, it would be wise for employers to make reasonable efforts to accommodate the philosophical beliefs of vegan employees.

Vegetarianism: not a protected characteristic

Just last month, in Conisbee v Crossley Farms Ltd, a Tribunal held that vegetarianism was not a protected characteristic for the purposes of the Act. In this case, Mr Conisbee had brought a claim against his ex-employer, alleging discrimination on the ground of a religion or belief, the relevant belief being vegetarianism. However, at a preliminary hearing, the Tribunal found that, whilst Mr Conisbee’s belief was genuinely held and worth of respect, it was not sufficient to be protected by the Act, because it did not concern human life and due to the fact that vegetarians have different reason for not eating meat, vegetarianism lacks the required level of cogency, seriousness, cohesion and importance.

Interestingly, in Conisbee v Crossley Farms Ltd, the Tribunal contrasted vegetarianism with veganism, stating that by contrast the latter did have clear cogency and cohesion, and that the underlying motivation for choosing veganism is fundamentally the same for all vegans. It will be interesting to see whether the tribunal forms when the case of Jordi Casamitjana v League Against Cruel Sports comes before it later this month.

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Whistleblowing: Reasonable belief in public interest?

In a whistleblowing case which came before it in June, the EAT found that the first instance tribunal had erred when it considered whether information provided by an employee was true, rather than whether it was the employee’s reasonable belief that the disclosure was made in the public interest.

The case of Okwu v Rise Community Action involved a small charity who provided support for individuals affected by, or victims of, domestic violence, female genital mutilation or HIV. The Claimant was employed as a domestic violence and female genital mutilation specialist  who, following concerns over performance, had her probationary period extended by a further three months. Shortly thereafter, the Claimant raised a number of her own concerns, including an alleged protected disclosure that the Respondent was in breach of the Data Protection Act by not providing her with secure storage facilities or a mobile phone given that she was dealing with sensitive and personal information.

The ET dismissed the Claimant’s automatic unfair dismissal claim due to a protected disclosure on the basis that:

(a) The matters raised by the Claimant were not in the public interest but concerned her own contractual position;
(b) The information about the concerns lacked sufficient detail to amount to a qualifying disclosure; and
(c) In any event the Claimant was dismissed due to genuine concerns over her performance and not for her complaints relating to her personal contractual position.

The EAT, however, upheld the Claimant’s appeal on two out of the three grounds and remitted the decision back to the ET for consideration. The following were the two grounds upheld.

Firstly, the EAT held that the ET had failed to explain its reasoning, or in the alternative had applied the wrong test, as to whether it was a public interest disclosure. The Tribunal should have asked whether the Claimant had a reasonable belief that her disclosure had been in the public interest and the fact that it concerned sensitive information begged the question of how could the Claimant not have held such reasonable belief.

Secondly, the EAT found that the ET had failed to engage with the need to determine the genuine reason for the Claimant’s dismissal and did not give due regard to the Claimant’s assertion that the decision was taken in response to her disclosure letter.

Whilst Miss Okwu won her appeal, she must still persuade the ET that her dismissal was unlawful as the ET will again consider whether the principal reason for the dismissal was because of her protected disclosure.

What does this mean in practice?

Where an employee is bringing a claim for unfair dismissal based on a protected disclosure, the burden of proof falls on the employee to show that they (a) made a protected disclosure and that (b) that protected disclosure (“whistleblowing”) was the reason or principal reason for their dismissal.

The principle of a worker’s reasonable belief in the public interest concerns point (a) of the above test and derives from section 43B ERA where it is stated that “a qualifying disclosure means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest…”.

The test of what amounts to a ‘reasonable belief’ is both an objective and subjective one. The belief must be objectively reasonable AND the worker must have held a genuine belief that the disclosure was in the public interest. The Tribunal is not required, and it does not form part of the test, to assess whether the disclosure was objectively made in the public interest. It is a matter of reasonable belief at the time. Rather frustratingly for employers, it therefore means that the public interest test can be satisfied even where the factual basis of the disclosure is false, or where there is in fact no public interest in the disclosure being made, as long as the worker believes that the disclosure made was in the public interest and that belief was objectively reasonable.

It would be prudent, therefore, for an employer to be mindful of the following:

- If a complaint or grievance is received, automatically consider whether it could amount to a “protected disclosure” and bear in mind the employee’s subjective beliefs.
- If it is, or could be, deemed a “protected disclosure” ensure that it is investigated thoroughly in accordance with any whistleblowing and/or grievance policies.
- In the event that a complaint is:

- not upheld, ensure that the worker is not treated unfairly as a result. If, however, you deem that the complaint was made maliciously, or not ‘in good faith’, then disciplinary action may be taken. However it would be wise to take legal advice before doing so.
- upheld, there must be affirmative action against any wrongdoer, including reporting the matter to a regulatory authority, to be able to show if required that the complaint was dealt with properly and given due attention.

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IR35 in the private sector – preparing for April 2020

From 6 April 2020, private sector employers will be subject to changes in the IR35 tax rules, a move which is intended to bring the private sector more in line with existing public sector obligations.

There are various steps private sectors employers should consider taking now, to ensure they are ready for these changes.

What is IR35?

IR35 was first introduced in 2000 as a means of taxing contractors who provide their services through an umbrella company, known as a personal service company (PSC) in the anticipation of avoiding income tax on their earnings.

Where the conditions for IR35 are met, tax and national insurance deductions must be made from the payment the contractor receives, irrespective of what their contract states. The conditions are:

- The individual personally performs services for an organisation
- Those services are provided under an intermediary (such as a PSC)
- The circumstances are such that if the individual was directly engaged by the organisation they would be regarded as an employee.

From April 2020, private sector organisations will be required to determine the employment status of all contractors before that person becomes engaged, and to notify the PSC (and any agency through which the PSC is engaged) of their deemed employment status.

If the IR35 conditions are met, income tax and national insurance deductions will be payable. In some circumstances the deduction will be made by the agency which pays the PSC; however in some circumstances it will be the organisation itself which will be deemed as the “Fee Payer” and is required to deduct the tax/NIC from any payment it makes.  

Failure to determine the correct employment status will result in the organisation automatically being deemed as the Fee Payer.

The legislation applies to all business with an annual turnover in excess of £10.2 million (or a balance sheet over £5 million) and which engages over 50 employees.

4 steps to prepare for IR35

  1. Identify

It is important to identify now any contractors in the business who will be subject to the IR35 employment status assessment next year and to carry out the relevant assessment, on a case by case basis.  This will enable the organisation to consider their tax position well in advance of April and to start to take steps to address any tax and other liabilities which may arise.

  1. Communicate

It will be necessary to communicate the results with any existing contractors and where applicable, the agency which engages them. Some contractors may not want to be engaged if they will have to account for income tax and NIC and could choose to relinquish their services. Identifying any skills gaps this will create early on will, of course, be essential to ensuring business continuity.

  1. Review systems and processes

Organisations will be better equipped if they have already taken steps to integrate the employment status assessment into their recruitment process for contractors. In addition measures should be established to ensure there is a clear differentiation between employees and contractors in the organisation, in order to protect the truly self-employed.

  1. Negotiate

If either the client or the agency has to start deducting tax this will change the financial balance of the relationship and will undoubtedly affect any commercial agency agreements which are in place. Reviewing your commercial agreements now to see if there is any scope to re-negotiate will be advantageous.

How can we help?

Bevan Brittan can help any business which is looking to review its processes, in line with the new IR35 rules, by providing a full service review of the employment status of contractors, as well as delivering strategic advice on how to best manage any potential risks associated with deemed employment status, and supporting in commercial contract review and negotiation. We also deliver training on site to managers and HR professionals.

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The Good Work Plan and the NHS People Plan – themes for change

In 2018, the government published the Good Work Plan in response to the Taylor Review to set out its core points for change. The Review and subsequent Good Work Plan looked to address issues surrounding existing employment legislation and how it could be updated to reflect modern working practices.

For NHS employers, NHS Improvement also published the Interim NHS People Plan in June 2019 with strategic direction for Trusts to follow.

We have picked out some of the key themes from each of these publications that you should be aware of.

Quality Work

One of the objectives of the Good Work Plan is to improve the quality of work. The government has created an independent Industrial Strategy Council to develop measures for industrial strategy. The work of this Council will specifically adopt and track metrics to assess the quality of work in the labour market.

The NHS People Plan similarly sets out an ambition to make the NHS the ‘best place to work’.

In order to accurately assess the issue of quality, the People Plan directs trusts to pay attention to the reasons for high staff turnover and retention issues. It also suggests actively promoting a leadership culture within the NHS, ensuring that staff are engaged in high quality work.

Accessibility

The Good Work Plan also focusses on adapting the regulations and standards of the labour market to not only allow more people to enter the market, but also to protect more flexible working conditions.

With regards to enabling access, the Good Work Plan commits to a greater focus on education and training, more specifically, vocational training. The introduction of ‘T levels’ as an alternative to ‘A levels’ allow young people with a specific interest more direct access into their preferred field of work. For those seeking to retrain or access work at a later stage, the Adult Education Budget and National Retraining Scheme, both championed in the plan, will be in action to facilitate those who wish to access work more readily at later stages of their lives.

The NHS People Plan seeks to address urgently the problem of the shortage of nurses. The People Plan proposes to develop a multifaceted strategy to increase the supply of undergraduate nurses as well as looking at other routes into the profession.

Outside of nursing, the People Plan seeks to make routes into medical professions more flexible, allowing greater accessibility to medical professions and more varied medical careers.

Bolstering worker rights

The changing nature of the labour market means more and more people are being classified as workers. As workers typically have fewer statutory protections, the Good Work Plan recognises the need for change as this group becomes more prominent. So far, the government have already extended the right to itemised pay slips and increased the maximum penalty for an aggravated breach of employment law (now £20,000) as a result of the Review’s recommendations, and more worker-friendly rights are coming into force in April 2020,as set out below.

As for the NHS People Plan, the focus is on making the NHS a good place to work. The report discusses providing more education and training to facilitate fulfilling careers and ensuring all employees (including those classified as workers) have a voice. This necessarily includes listening to employees, reassessing what employment in the NHS offers and improving staff experience by actively engaging them in their own management.

Changes to look out for

The Good Work Plan had several recommendations for improving employee and worker rights. Here are some key changes to take note off which will be effective as of 6 April 2020:

- A written statement of particulars must be given on, or before the first day of employment (rather than within the first two months) and to works as well as employees. More information is to be provided to than previously;
- The reference period for determining an average week’s pay will be increased from 12 weeks to 52, (or the number of complete weeks for which the worker has been employed);
- Agency works will have the right to pay parity after 12 weeks; Agency workers must be given a ‘key information document’ regarding their employment; and
- Lower thresholds for requesting information and consultation arrangements (2% of employees).

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