What’s new in the world of Employment Law And HR – September /October 2019

An update for Employers & HR professionals

Here’s a round-up of some recent legal developments plus a few interesting news stories:

There was some good news for….

Clowns – who may have found a new line of work (in New Zealand at least).   Although more likely to be seen at a child’s birthday party than in the workplace, an employee from New Zealand decided to take along a clown as his “support person” to a work meeting to discuss his potential redundancy.   According to the BBC news, the employee was very pleased with the clown’s professionalism, although he had to be asked to stop making balloon animals as it was difficult to hear above the noise of squeaking plastic.

Employers in the UK will take comfort (particularly those suffering from “coulrophobia”) in knowing that they are unlikely to find themselves sat opposite Coco the clown during a formal meeting with a member of staff.   In the UK, the statutory right to be accompanied to a formal grievance or disciplinary meeting is limited to being accompanied by either a work colleague or a trade union official.   Although it may be appropriate in some situations to allow a family member or friend to accompany an employee – for example if it would help overcome a disability or a difficulty understanding English –  employers can legitimately refuse a request to be accompanied by anyone other than a colleague or trade union official.

There was some bad news for…

Emmerdale actor Asan N’Jie – who was dismissed after swearing and throwing a punch at a fellow actor after the evening TV Choice Awards held in London last month.   With less than 12 weeks until Christmas this is a timely reminder that employers’ social events and Christmas parties are work events, even though they may take place outside of normal working hours.  As a result, employees can be disciplined for any misconduct committed during such events.  However, it also means that an employer is likely to be (vicariously) liable for the behaviour of its employees at a work function as such behaviour is still regarded as being “in the course of employment”.

Vegetarians – when an Employment Tribunal recently ruled that vegetarianism was not capable of amounting to a “philosophical belief” under the Equality Act 2010 and, therefore an employee’s claim that he had been discriminated against because he was a vegetarian failed.

The ruling related to a claim brought by Mr Conisbee against his employer, Crossley Farms Limited after he resigned from his job as a waiter/barman.   Details of what less favourable treatment Mr Conisbee alleged he experienced as a result of his vegetarianism are not available in the judgement.  However, Mr Conisbee failed to convince the Tribunal that his vegetarianism met the necessary criteria to constitute “a religious or philosophical belief” under the Equality Act 2010.

Whilst the Tribunal accepted that Mr Conisbee had a genuine belief in his vegetarianism and that he genuinely believed the world would be a better place if animals were not killed for food, this was not enough for Mr Conisbee to be said to have a “religious or philosophical belief”. The Tribunal said that his belief was not weighty enough nor was it coherent enough for it to amount to a “religion or philosophical belief”.   According to the Tribunal, there were numerous, differing and wide varying reasons as to why people chose to be vegetarianism (lifestyle, health, diet, concern about the way animals are reared for food etc) and so it couldn’t be said that there was a clear and joined-up belief system behind vegetarianism. You can listen to more about this case in Alison’s latest podcast.

But some good news for…vegans?

Interestingly, the Tribunal judge in Mr Conisbee’s case seemed to suggest that veganism might be capable of being protected as a religious or philosophical belief.  The judge said that, unlike vegetarianism, the reasons for being a vegan appear to be largely the same: “ they do not accept the practice under any circumstances of eating meat, fish or dairy products, and have distinct concerns about the way animals are reared, the clear belief that killing and eating animals is contrary to a civilised society and also against climate control”.  This, the judge said demonstrated “a clear cogency and cohesion in vegan belief”.

It so happens that another Employment Tribunal is due to decide shortly whether ethical veganism is capable of being a “philosophical belief”- watch out for future updates on this in our newsletter.

Conisbee v Crossley Farms Limited and Others – Employment Tribunal

Women lose challenge to state pension age increase

It was also a disappointing week for campaigners who brought a challenge in the High Court in relation to the Government’s handling of the increase to the state pension age of women.

Historically, the state pension age for women was 60 and 65 for men.   However, under the Pensions Act 1995, a timetable was drawn up to equalise the age at which men and women could draw their state pension.  The increase in the qualifying age to 65 for women was going to be phased in between 2010 and 2020 but this timetable was accelerated in 2011 and the new qualifying age of 65 was brought forward to 2018.

The increase in state pension age and the acceleration of this process in 2011 affected millions of women, but women who were born in the 1950’s were particularly affected- many suffering financial hardship.   These women found themselves forced to either work much longer than expected or to retire with no state pension for the period by which their retirement age was extended – and with not enough time to build up savings that could bridge the gap.

The challenge in the High Court was brought by two such women who had seen their state pension age increase from 60 to 66 and claimed that they had not been given time to adjust to the new retirement age and that the changes in 1995 and 2011 had not been clearly communicated. The campaigners argued that the government’s introduction and handling of the increase in pension age was unlawful discrimination on the grounds of sex and age.

They lost on both arguments.  The Judges of the High Court said the court’s role was limited because there was no basis to conclude that the government was not allowed to make the policy choices contained in the legislation regarding the equalisation of pension age – and that the legislation was, in any event, approved by parliament.  The High Court went on to hold that ‘there was no direct discrimination on grounds of sex, because this legislation does not treat women less favourably than men in law’.  Instead, the judges said, “it equalises a historic asymmetry between men and women and thereby corrects historic direct discrimination against men.”

The High Court also rejected the claimants’ argument that the policy was discriminatory based on age, saying even if it was age discriminatory ‘it could be justified on the facts’.

This article was written and researched by Miranda Amos, Solicitor at our Salisbury Office.  Miranda advises clients across Hampshire, Wiltshire and Nationwide.

 Miranda is the firms expert on maternity, pregnancy and parental rights. If you have any questions or concerns about the proposed changes or any issues in your business please do get in touch with Miranda directly!

Don’t forget getting advice from a Solicitor does not have to be complicated or costly!