The UK left the EU at 11pm on Saturday 31st January 2020 with the implementation period being until 31stDecember 2020. During this time the Government will negotiate with the EU. But what does this mean for employers and workers? Employers can still hire EU workers because they continue to have the right to work here; EU nationals have until June 2021 to apply for settled status.
Much of our employment law comes from the EU: working time, holiday pay, maternity rights, discrimination. Under the European Union (Withdrawal) Act 2018 these rights are saved as “retained EU law”. But will they stay in place after 31stDecember? There are three options; existing rights will be maintained, amended, or reduced.
In the December 2019 Queen’s Speech, the Government announced it will include clauses on the protection and enhancement of workers’ rights in the Employment Bill – but it’s not clear when this will be introduced. The UK can’t legislate to reduce rights until after the implementation period. But the Employment Bill will need to be passed before it ends in order to protect the rights.
It’s likely that protection will continue as EU trade deals stipulate a level playing field: this avoids trading partners gaining economic advantage by reducing workers’ right. Furthermore the non-binding Political Declaration states there will be a level playing field clause to maintain “employment standards at the current high levels”
2 Decisions on “Philisophical Beliefs” under the Equality Act 2010
There are nine protected characteristics under the Equality Act: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, sexual orientation; it’s unlawful to discriminate against them
- Ethical Veganism – Casamitjana Costa v The League Against Cruel Sports
On 3 January 2020, Mr Casamitjana won a landmark case in which ethical veganism was held to be a philosophical belief and therefore protected under the Equality Act 2010.
Mr Casamitjana said he was sacked by the League Against Cruel Sports because he’s an ethical vegan; they said it was his gross misconduct. He’d discovered his workplace pension was invested in firms involved in animal testing. He spoke to his employer, but they took no action, so he emailed his colleagues, and was dismissed.
The Norwich Employment Tribunal, ruled that ethical veganism did meet the test required for it to be considered a “philosophical belief” and therefore protected under the Equality Act 2010. The Employment Judge stated that ethical veganism was “important” and “worthy of respect in a democratic society” and further commented that:
‘It [ethical veganism] is not just about choices of diet, but it is about what that person wears, and all aspects of their life seem to be governed by ethical veganism.’
The matter will return for a substantive hearing on 20 February 2020 to decide whether the employer in this case did indeed treat the Claimant less favourably because of his belief in ethical veganism.
- Gender Change – Forstater v CGD Europe and ors
Contrary to Casamitjana, the Employment Tribunal in Forstater ruled that a belief that there are two biological sexes in humans and that it is not possible for a human to change gender was not a ‘philosophical belief’ within the meaning of the Equality Act 2010.
In 2018, Forstater acting in her personal capacity engaged in a Twitter debate about proposed reforms to the Gender Recognition Act.Complaints were raised with CGD that some of her tweets were “transphobic.” Subsequently, Ms Forstater’s contract was not renewed and she complained that she had been subjected to discrimination on the grounds of her philosophical belief.
At a preliminary hearing, the Tribunal found that the belief was genuinely held in that it was a belief as to a substantial aspect of human life and not merely an opinion based on the present state of information. The Judge held that the belief attained the necessary level of cogency and cohesion however, he further held that the belief involved “misgendering” and was therefore incompatible with human dignity and the fundamental rights of others.
In the circumstances, it could not be a protected philosophical belief under the Equality Act 2010.
Although the Ethical Veganism case in particular has received widespread coverage it should be bourn in mind that both cases are in the Employment Tribunal so the decisions are not binding. Furthermore, for employers in Northern Ireland please note that the cases are persuasive rather than binding and that the Equality Act 2010 does not apply in Northern Ireland.
Geldart v City of London Police –Sex Discrimination
In Geldart the Employment Tribunal found that City of London Police’ failure to pay an officer her ‘London Allowance’ whilst she was off on maternity leave amounted to direct sex discrimination.
The ‘London Allowance’ is a non-pensionable allowance payable under the Police Regulations 2003 which is distinct from salary and ‘London Weighting.’ The London allowance stopped when Ms Geldart’s maternity pay ceased during maternity leave.
The Employment Appeals Tribunal (EAT) upheld the Tribunal’s decision. Nothing in the PoliceRegulationsprevented the London Allowance being payable during maternity leave and it was noted that the allowance was payable when an officer was suspended from duty. As such, failing to pay the London Allowance was discrimination on the grounds of pregnancy/maternity and an act of direct sex discrimination.
Ms Geldart did not have to prove that the force would have treated a male comparator differently as a detriment on account of pregnancy/maternity is sex discrimination without the requirement of a comparator.
|Lopez Ribalda and others v Spain – Covert Monitoring
In this long running Spanish saga, the European Court of Human Rights (ECHR) held that covert surveillance of employees under suspicion of theft did not breach Article 8 of the Human Rights Act 1998, namely the right to private life.
The case involved the installation of covert video surveillance in a Spanish supermarket where theft was a common occurrence. The surveillance was limited to two weeks and the recordings were confined to a small group of staff.
It was held that not informing the employees in advance that they would be recorded did not violate their Article 8 rights. The ECHR held that employees should have a limited expectation of privacy at work on a supermarket floor and found that the employer had taken steps to confine the circulation of the recordings. The ECHR agreed with the decision of the Spanish courts that a fair balance had been struck and that the intrusion was proportionate means of achieving a legitimate aim.
Bereavement Leave note
The Regulations named ‘The Parental Bereavement Leave Regulations 2020’ and ‘The Statutory Parental Bereavement Pay (General) Regulations 2020’ come into effect on 6 April 2020, and allow a parent to take either one or two weeks’ paid leave (the two weeks can be separate) for parents who have a child aged under 18 which dies. The leave is paid at the lower of £151.20 per week or 90% of the parent’s salary.
Labour Relations Agency (LRA) – Early Conciliation now available in Northern Ireland
On 27 January 2020 Early Conciliation came into effect, whereby the LRA can now provide this new service to employees, employers, and their representatives. Any Claimant who wishes to lodge a claim with the Industrial or Fair Employment Tribunal must first contact the LRA and consider the option of Early Conciliation.
Tribunal claims usually have to be lodged within three or six months of the alleged incident or behaviour, depending on the type of claim. However, when an individual makes an Early Conciliation notification the time limit will stop for a period up to one calendar month during which conciliation can take place. The Conciliation Officer appointed also has the discretion to extend for a further 14 days, albeit there must be a reasonable prospect of an agreement being reached between the parties.
There are a limited number of exemptions allowing potential Claimants to go straight to tribunal without availing of the Early Conciliation service provided by the LRA. For example, where a dispute involves multiple claims a Claimant with be allowed to proceed freely. In this instance, if someone with exactly the same dispute has an Early Conciliation certificate, other potential Claimants do not need to submit their own Early Conciliation notification as they can be added to the tribunal claim form for the lead case.
National Minimum Wage and Living Wage rates
There are different levels of National Minimum Wage (NMW), depending on your age and whether you are an apprentice. If you’re aged 25 and over, you’ll get the National Living Wage (NLW) – these hourly rates change in April each year.
The minimum wage and living wage rates are:
*If you are under 19 or in first year of apprenticeship (otherwise refer to age bands). The apprenticeship rate does not apply to Higher Level Apprenticeships.
*Agricultural workers in Northern Ireland are entitled to the Agricultural Minimum Wage rates, rather than the NMW or NLW, unless the NMW or NLW rate is higher.
The topics covered in this Newsletter are complex and are provided for general guidance only. Therefore if any of the circumstances mentioned in this Newsletter have application to you, seek expert legal advice.