Welcome to our latest round-up of interesting Employment Tribunal (ET) and Employment Appeals Tribunal (EAT) rulings in recent months. As regular readers will know, here at ViewHR we like to keep an eye on what the courts have been up to, to be able to determine potential impacts on employers. This month we consider two cases considering questions of discrimination.
McClung v Doosan Babcock Ltd – Is supporting a football team a Protected Characteristic Under the Equality Act?
The Equality Act 2010 sets out nine Protected Characteristics, which it is unlawful to discriminate against somebody based upon. One of these is religion and philosophical belief, with philosophical belief being defined as a belief that is:
“genuinely held; be a belief and not an opinion or viewpoint based on the present state of information available; be a belief as to a weighty and substantial aspect of human life and behaviour; attain a certain level of cogency, seriousness, cohesion and importance; and be worthy of respect in a democratic society, compatible with human dignity and not conflict with the fundamental rights of others.”
In recent years we have seen the question of what constitutes a philosophical belief in practice tested in the courts, with a 2020 case determining that ethical veganism meets the criteria.
In the last month a case in Scotland (where some aspects of employment law are different to England and Wales, but the principles of the Equality Act apply) has considered whether or not being a supporter of a football club is a protected characteristic. Contractor Edward McClung argued that his support for football team Glasgow Rangers met the criteria, because as he stated: “I don’t go to church. I go to Rangers. It’s a belief to me.” He described avidly following all matched and media output, and how his support impacted on how he lived his life, including giving him the drive to work so he could attend games, be charitable, support the team and be positive.
The manager in the case is a supporter of Celtic, with there being a notorious rivalry between the two teams. McClung argued that he was not offered further work because of his support of Rangers, as a colleague had previously remarked that he was “unusually okay for a Rangers fan”.
Employment judge Lucy Wiseman acknowledged that his support of the team was important to the claimant, but that this does “not represent a belief as to a weighty or substantial aspect of human life and have no larger consequences for humanity as a whole” with nothing underpinning it “beyond a desire for the team to do well/win and no impact on how people lived their lives.”
Rather, she found that McClung’s support for Rangers was more likely “a lifestyle choice”.
It is interesting that the case centred around these points, rather than the denominational connections of both teams. Despite the fact that the Company was successful in defending this case, given the costs and disruption associated with employment tribunal attendance, this case highlights the need for employer to take care around issues where an employee may seek to argue a philosophical belief applies.
Lawton v Crystal Ball Ltd – The importance of making reasonable adjustments.
Another protected characteristic set out within the Equality Act 2010 is Disability, which is defined as follows:
“You’re disabled under the Equality Act 2010 if you have a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on your ability to do normal daily activities.”
The law requires employers to implement reasonable adjustments for disabled employees.
In the case of Lawton and surveillance technology company Crystal Ball, Mr Lawton suffers from a condition which causes “debilitating leg pain” and took medication as a result of this which caused him to suffer constipation.
During his employment, his manager Mr Singh questioned why Mr Lawton was working from home when the lift at the company premises was broken, made a comment which the employment tribunal found to be humiliating about Mr Lawton being too “slow” during a fire drill, and unfairly questioned his time in the toilet.
The tribunal heard that when Occupational Health advisers said adjustments needed to be made as a result of Mt Lawton’s disability, Mr Singh’s attitude towards him changed and he started ignoring him in the office, as this was seen as a challenge to his authority.
Mr Lawton then faced disciplinary investigations after there was a security breach on the company’s server and he placed some documents in a personal file. The ET judge found that “Mr Singh had a discriminatory reason for instigating disciplinary procedures against Mr Lawton. We consider that Mr Singh had an agenda to remove Mr Lawton from the business. This was a progressive situation which intensified over time as Mr Singh became more frustrated.”
Mr Lawton resigned in December 2019, saying he considered the relationship between him and his employer had irrevocably broken down. He brought a case to ET for unfair dismissal and disability discrimination, and was awarded compensation of £30,011.
This case highlights that as well as making reasonable adjustments, employers also need to ensure that they adopt a supportive approach to the implementation of these, rather than seeking to humiliate or punish employees for requesting that their needs and legal rights are met.
If you are an employer and would like support with any of the topics considered in this blog, please do not hesitate to contact a member of the ViewHR team today.
