16th October 2019 ❘ Legal News and Commentary

Is vegetarianism a protected characteristic under the Equality Act 2010?

Is vegetarianism a protected characteristic under the Equality Act 2010?

Mr Conisbee had been vegetarian throughout his employment with
Crossley Farms. He was given snacks during the course of his employment,
which he was subsequently told contained meat. He was later disciplined
for wearing a creased shirt and Mr Conisbee then resigned and claimed
direct discrimination on the grounds of religion and belief, based on
his vegetarianism.

Mr Conisbee argued that his vegetarianism was a
philosophical belief and so was protected from discrimination. The ET
rejected the claim on the basis that while Mr Conisbee had a genuine
belief in vegetarianism, that belief did not satisfy the necessary
criteria to be protected as a philosophical belief under the Equality
Act 2010.

The ET stated that in order to satisfy the legal test
‘the belief must have a similar status or cogency to religious beliefs.
Clearly, having a belief relating to an important aspect of human life
or behaviour is not enough in itself for it to have a similar status or
cogency to a religious belief’.

However, a
different ET is to make a decision later this month on whether ethical
veganism is a protected belief and so we may not have heard the last on
this topic.

If conduct is unwanted and creates an offensive or
humiliating environment, will it automatically be related to a protected
characteristic?

No, according to the Employment Appeal Tribunal (EAT) in Raj v Capita Business Services Limited and another.

Mr
Raj was employed as a customer services agent. After he was dismissed
for performance reasons, he filed an employment tribunal (ET) claim and
one of his claims was that he had been subjected to sexual harassment.

Mr
Raj stated that his line manager, Mrs Ward, would stand behind him and
massage his neck, shoulders and back. Although Mrs Ward claimed that
this never took place, the ET accepted that the massages did happen and
that they made Mr Raj uncomfortable and also decided that the massages
were unwanted conduct.

Despite this, the ET decided that conduct
was neither related to Mr Raj’s sex or of a sexual nature, but was
misguided encouragement.

The ET also decided that even though it
did not believe Mrs Ward when she claimed that the massages didn’t
happen, this did not mean that the burden of proof definitely then
shifted to Capita to prove that Mrs Ward’s conduct was not linked to sex
(although please see the Court of Appeal’s ruling in the case of Base
Childrenswear v Otshudi, below).

Even so, the ET concluded that her conduct was not linked to sex.

Mr Raj appealed to the EAT, but the EAT agreed with the ET’s reasoning and so the appeal failed.

Are there strict, prescribed circumstances when a person can amend their employment tribunal claim form?

Not necessarily, decided the Employment Appeal Tribunal (EAT) in the case of Pontoon (Europe) Limited v Shinh.

Mr
Shinh entered into a contract, via his personal service company, with a
recruitment agency, Pontoon, to provide services to National Grid plc.
Mr Shinh submitted a whistleblowing claim to the Employment Tribunal
(ET) and stated on the claim form that his employer was National Grid.
He later attempted to amend his claim by adding Pontoon as a further
respondent and also by making an additional claim of ‘blacklisting’
against both Pontoon and National Grid. The ET allowed him to make these
amendments.

Pontoon appealed to the EAT, arguing that the ET was
wrong to allow the amendments. Pontoon said that the ET had not
considered the appropriate factors set out in the judgment in Selkent
Bus Co v Moore, which had to be take into account when deciding whether
or not to allow an application to amend. In particular, Pontoon said,
the ET had not balanced the prejudice to each party in deciding whether
to allow or refuse the amendment.

The EAT decided that the ET had
carried out a sufficient balancing exercise and also ruled that the
factors set out in Selkent Bus Co v Moore are not an exhaustive list of
all the factors which should be considered.

This case demonstrates
that when faced with an application to amend a claim form, the ET will
allow itself to consider other factors which are relevant and will not
necessarily be bound only to consider the factors set out in previous
case law.

If an employer lies about the reason for dismissal, does it shift the burden of proof in discrimination cases?

Yes, decided the Court of Appeal (CA) in Base Childrenswear v Otshudi

Ms
Otshudi was a photographer for Base Childrenswear. She was dismissed
and told by her employer that this was because she was redundant, but
she believed that her dismissal was because of her race and so she
lodged an employment tribunal (ET) claim.

The employer claimed
that the reason for redundancy was ‘purely financial’, but the employer
then amended their response to her tribunal claim to imply that they
believed that Ms Otshudi was going to steal clothes from them and that
this was why she was dismissed.

Base Childrenswear claimed that the lie to Ms Otshudi as to the reason for her dismissal was so as to minimise confrontation.

The
ET and the Employment Appeal Tribunal decided that race was a factor in
the dismissal. The manager had a genuine belief that Ms Otshudi was
stealing, but this was based on prejudice rather than facts.

The
CA decided that the manager’s persistent lying about the real reason for
the dismissal gave rise to the possibility that the dismissal was on
the basis of race and the CA decided that this then shifted the burden
of proof over to the employer, to prove that race was not a factor in
the dismissal. The employer had failed to show that race was not a
factor in the dismissal and so the dismissal was found to have been
discriminatory.