Latest Employment Law case updates - Edition 9 2019

By Sam Rayner, Alison Dixon

10-2019

Welcome to the latest Edition of Frontline UK

1. Vegetarianism not a protected characteristic, but veganism might be

2. EWC opinions cannot delay transnational restructuring

3. Employee belief in public interest crucial to whistleblowing claims

4. Provision of services through limited company does not preclude benefit of employment rights


1. Vegetarianism not a protected characteristic, but veganism might be

Conisbee v Crossley Farms Limited and others (Employment Tribunal)

An Employment Tribunal has concluded that vegetarianism is not a "philosophical belief" for the purposes of the Equality Act 2010 ("EqA") and should therefore not qualify as a protected characteristic for the purposes of founding discrimination claims. The Tribunal did suggest, however, that its conclusion may be different in the case of veganism, which was in its view premised upon a clear "cogency and cohesion" in the vegan belief.

This judgment was handed down following a preliminary hearing which sought to address several points of fact and law in the context of a claim that an individual had been discriminated against on the basis of his vegetarianism, which contributed to his resignation as a waiter / barman. The Claimant alleged that his vegetarianism should constitute a "philosophical belief" and – accordingly – a "protected characteristic" for the purposes of the EqA.

The Judge concluded that vegetarianism did not meet the threshold for "philosophical belief" under the EqA because it is neither a weighty belief nor a substantial aspect of human life and behaviour; instead it is a "lifestyle" choice which: (i) relates more to preserving and protecting the lives of animals rather than humans; and (ii) is pursued for a variety of reasons such as lifestyle, health, diet or concern for animal welfare. This meant that vegetarianism was unable to attain the requisite level of cogency, seriousness, cohesion and importance. As a comparison, the judge mentioned that veganism would have a much greater chance of qualifying for EqA protection as a "philosophical belief" due to its more unified rationale; namely that killing and eating animals is "contrary to a civilised society and … climate control".

This case provides a contemporary example of the limits of the EqA, which will continue to be tested where disgruntled individuals are dismissed without unfair dismissal protection and seek a cause of action. The Tribunal was clear that it did not want to "set the bar too high"; employers should therefore remain cognisant of the prospect of experimental claims in a corporate environment increasingly focussed on inclusion and diversity. Employers should also take note of the judge's reflections on veganism, which may open the door for further debate around what constitutes a "protected characteristic".

2. EWC opinions cannot delay transnational restructuring

Hinrichs & Others v Oracle Corporation UK Ltd (EAT)

In its first substantive judgment on the operation of European Works Councils ("EWC"), the EAT has confirmed that transnational businesses which have set up an EWC are able to proceed with large-scale projects prior to receiving and considering a formal EWC opinion. This does not absolve employers from their obligations to inform and consult, as well as to provide a reasoned response to any EWC opinion once given, but confirms that plans need not be delayed pending receipt.

In this case, Oracle had established a EWC under the UK's Transnational Information and Consultation of Employees Regulation 1999 ("TICER"), which requires the EWC to be informed and consulted on transnational business proposals in particular circumstances. The complaint followed the Company's decision to close a number of sites in Western and Central Europe, and on appeal centred on Oracle's alleged failure to wait for, and take into account, the EWC's formal opinion on the plans. The EWC considered it had insufficient information to produce this opinion and that proceeding without this formal input represented a breach of TICER.

The EAT disagreed, holding that neither TICER nor its underlying European Directive required organisations to postpone management decisions pending a formal opinion from EWCs. Whilst the legislation contains prescriptive information and consultation obligations which must be adhered to as applicable, it did not intend to give EWC's powers to delay and/or veto management proposals; indeed TICER's underlying Directive had made clear that the power to provide "opinions" on company proposals should not "prejudice the ability of undertakings to adapt". There was therefore no basis upon which the obligations sought by the EWC could be read into TICER.

This clarification is good news for multi-national employers with EWCs, who are concerned about their influence and ability to delay strategic and urgent international projects. It is true that a no-deal Brexit would – under current plans - prejudice the ongoing operation of EWCs in the UK. However, the judgment removes another hurdle for project planning and provides a long-overdue interpretation of TICER in the meantime.

3. Employee belief in public interest crucial to whistleblowing claims

Okwu v Rise Community Action (EAT)

The EAT has reiterated that when assessing whether an individual has made a protected disclosure for the purposes of whistleblower protection, the focus should be on whether that individual had disclosed information which, in their reasonable belief, was communicated in the public interest. The surrounding circumstances (e.g. dismissal or disciplinary proceedings) and accuracy of the disclosure are not determinative.

In this case, an employee working at a small charity was alleged to have been performing poorly and therefore her probation period was extended by three months. In response to the allegation, the employee submitted several complaints including about a lack of pension, a failure to give her a written statement of terms, that she had no secure storage for files containing sensitive information and that she had to use a shared phone to communicate with clients. The employee was subsequently dismissed, apparently for poor performance.

The Employment Tribunal dismissed her claims for automatic unfair dismissal on the basis that she had made protected disclosures, holding that her disclosures were not sufficiently detailed to show any tendency to breach civil or criminal obligations and were also "personal contractual matters" so did meet the requisite "public interest" threshold.

The EAT overruled this decision and remitted the case back to the Employment Tribunal on the basis the ET had applied the wrong legal test. In the EAT's view, levels of specificity and ancilliary motives for disclosures were not to be determinative; the focus must be on whether the individual could reasonably believe them to be in the public interest. This could have been the case here, even though the disclosures were being made in defence of performance issues raised against her.

This case reiterates that whistleblowing claims do not require an objective assessment of whether disclosures are in the public interest; they require a quasi-subjective assessment of the discloser's view of this issue. This is a complicated question which leaves scope for tribunals to interpret matters flexibly and emphasises the need for employers to investigate and record clear reasons for actions taken against employees (such as dismissals) in situations where those employees are purporting to make public interest disclosures.

4. Provision of services through limited company does not preclude benefit of employment rights

Community Based Care Health Ltd v Narayan (EAT)

The EAT has ruled that a GP providing out-of-hours medical services was a worker and entitled to benefit from relevant statutory employment protections, such as the right to paid holiday and protection against discrimination, notwithstanding the fact that she was paid through a limited company.

Here, the relevant individual was engaged as a "duty doctor". Whilst she was not entitled to be provided with or accept work under her contract, had flexibility as to holiday and did external locum work through an agency, she generally provided her services at a single practice on the basis of a regular rota. From October 2015, she set up a limited company and provided its bank details to the Company, into which the Company made regular payment. The individual's limited company accounted for tax on the payments made to it. When the Company ceased to offer her further work, she brought numerous employment claims, including for unfair dismissal, discrimination and holiday pay.

The Employment Tribunal dismissed her claim for unfair dismissal on the basis that she could not be an employee because there was no mutuality of obligation between the parties. However, the judge was satisfied that she was a worker, and therefore entitled to bring claims for unpaid holiday pay and discrimination, due primarily to the fact that she was required to work personally for the Company and provided regular services over a long period of time.

The EAT agreed with this assessment, adding that the fact that she was paid through a Company was not fatal to this assessment. In its view, the nature of the provision of GP services, which had to be delivered by an individual who met stringent qualification and performance requirements, meant that the "employment" relationship was between the individual who met those criteria, as opposed to an "inanimate corporate entity". It also distinguished other cases in which GPs were found to have been marketing services to multiple medical service providers, rather than delivering stable services to a single provider over a period of time.

This judgment demonstrates that Tribunals will take a granular, factual and practical approach to questions of employment status; technicalities such as contractual terms which fail to represent the reality of the relationship or complicated payment mechanisms which artificially obscure the true picture will not be determinative. In particular, this decision reiterates that the use of a limited company intermediary does not necessarily prevent an individual from claiming employment rights against an end user where they provide services: (i) personally; and (ii) to an end user who cannot properly be described as their client or customer.

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