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Religious Harassment – context is everything

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The Times’ senior sub-editor’s comment “Can anybody tell me what’s happening to the f***ing Pope?” in the context of a busy newsroom with a looming deadline on a story about the Pope, did not amount to religious harassment.

Mr Heafield, a Roman Catholic, claimed that he had been shocked into silence by his line manager’s comment and found it to be offensive, unnecessary and blasphemous and therefore brought a claim for religious harassment.

The EAT stated that whilst the use of an expletive in a sentence about the Pope might be interpreted as disrespectful to a devout Catholic, in reality people are not perfect and use bad language.

When taking into consideration the context in which the statement was made and the fact that in referring to “the Pope” in this context, the editor was talking about the article and not the Pontiff, it was not intended to be anti-Catholic; it was therefore unreasonable for Mr Heafield to feel that his dignity had been violated or that he had been subjected to an adverse environment. On this basis, Mr Heafield’s claim of religious harassment was rejected.

This case (Heafield v Times Newspaper Limited) will provide some comfort to employers, as it reinforces the previous decisions of that it does not wish to encourage a “culture of hypersensitivity” in the workplace.

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How many Easter eggs did you eat?

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The NHS has reported that almost 25% of adults in the UK are obese. It will hardly be surprising to hear therefore that questions have arisen as to whether obesity is a disability.

The Employment Appeal Tribunal in, Walker v Sita Information Networking Computing Ltd, found that although obesity is not, in itself, an impairment under disability discrimination law, the physical and mental conditions arising from obesity can qualify as impairments.

Mr Walker weighed over 21 stone and suffered from health problems including bowel problems, chronic fatigue symptoms and depression, which had a significant effect on his day-to-day life. He brought a claim for disability discrimination against his employer. The Employment Appeal Tribunal upheld his claim and said that is not the cause of Mr Walker’s symptoms that should be focused on but the effect. This is the case even where the cause is excluded from the definition of disability. A prime example is liver disease caused by alcoholism.

As an employer, if you have any obese employees and the effect of their obesity is that they qualify as disabled under the Equality Act, you will be under an obligation to consider and, where appropriate, make reasonable adjustments.

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Compensation against one respondent can be demanded from any

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In discrimination cases, employees can sue both their employer and anyone they think has helped their employer to act in a discriminatory manner.  In London Borough of Hackney v Sivanandan, the Court of Appeal confirmed that where employees claim money from multiple parties, compensation must be awarded on a joint and several basis (i.e. the employee can claim the full amount from any of the parties and the unsuccessful respondents then have to sort out who ought to pay which proportion of the damages between themselves).

In 1999, Ms Sivanandan, a race equality adviser applied for two positions at a race relations body, which was funded by the local authority. After failing to be shortlisted for either position, she successfully brought claims for race and sex discrimination against: (1) the race relations body; and (2) the local authority; and (3) its employee, Ms White.

In terms of a remedy, the Tribunal ruled that although liability should be apportioned between Ms White and the other respondents, it limited Ms White’s award to £1,250 in respect of injury to feelings only. The other respondents were jointly and severally liable for the £400,000 compensation awarded to Ms Sivanandan.

The Employment Appeal Tribunal overturned this decision on the basis that in cases where the damage suffered by the employee was caused by the collective action of the respondents, a tribunal cannot limit the liability of one respondent. Whilst the question of who must pay effectively comes down to the whim of the claimant, who will likely ‘cherry pick’ the respondent with the largest financial assets, as stated above the Respondents can then bring proceedings against each other in order to achieve a fairer apportionment of the costs of losing.

This decision should and will make individuals who are made a party to discrimination claims more anxious about the impact and more likely to seek and need independent advice.

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Volunteers have no protection under discrimination law but interns do

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In X v Citizens Advice Bureau, X signed a volunteer agreement to work four to five hours a week for a Citizens Advice Bureau. The volunteer agreement specifically stated that it was “not an employment contract or legally binding”.  The CAB subsequently asked the volunteer to stop working for the organisation. She claimed that this was disability discrimination.

The Equality legislation only protects employees, other workers and people seeking access to work and training. The CAB therefore said that X was not covered by the Equality Act as she was neither an employee, worker, nor someone seeking vocational training or employment.

The Supreme Court agreed with the CAB and decided that this volunteer was not protected by the equality legislation as there was no legally binding employment contract. Furthermore, the purpose of the volunteer work was not to determine whether she should be offered paid work in the future. She was purely there to“do good”. Importantly, the Supreme Court distinguished between “volunteering” (which is not protected by equality law) and undertaking a “work placement” which is.

Whilst this decision may provide some comfort to employers, it is important to note that most people working for free in commercial organisations are likely to be protected under discrimination law because they are typically there to gain access to employment or vocational training.

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Wearing crosses / Tensions between rights of homosexuals and religious groups …at work

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To the great joy of the Daily Mail, in the much publicised case of Eweida and Ors v UK, the European Court of Human Rights ruled that Nadia Eweida, a practising Christian and British Airways check in worker should not have been prevented by BA from wearing a visible plain silver cross necklace. Whilst the European Court agreed that BA’s aim to promote their corporate image was reasonable, there was no evidence that employees wearing religious items had a detrimental impact on that image. The European Court decided that there had been a breach of Ms Eweida’s right to manifest her religion.  The fact that BA subsequently amended their uniform policy demonstrated that the earlier prohibition was not very important.

By contrast though, Shirley Chaplin, who was a clinical nurse who was not permitted to wear a crucifix outside her uniform on the basis it was a health and safety risk to nurses and to patients failed in her case. The Court said that hospitals were better placed to make decisions about clinical safety than a Court.

Tensions between rights of homosexuals and religious groups …at work

To much less fanfare, but equally significantly, in conjoined cases, the European Court found that the rights of homosexuals trumped those of religious groups opposed to homosexuality.

Lillian Ladele, an Islington Council Marriages Registrar, and Gary McFarlane, a Relate Psycho-sexual Counsellor were dismissed for refusing to conduct civil partnership ceremonies and providing therapy to gay couples respectively. The European Court decided that both the Council and Relate had a legitimate policy to promote equal opportunities and to require their employees not to discriminate on grounds of sexual orientation.

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Volunteers have no protection under discrimination law

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In X v Citizens Advice Bureau, X signed a volunteer agreement to work four to five hours a week for a Citizens Advice Bureau. The volunteer agreement specifically stated that it was “not an employment contract of employment or legally binding”. The CAB subsequently asked the volunteer to stop working for the organisation. She claimed that this was disability discrimination.

The Equality legislation only protects employees, other workers and people seeking access to work and training. The CAB therefore said that X was not covered by the Equality At as she was neither an employee, worker nor someone seeking vocational training or employment.

The Supreme Court agreed with the CAB and decided that this volunteer was not protected by the equality legislation as there was no legally binding employment contract. Furthermore, the purpose of the volunteer work was not to determine whether she should be offered paid work in the future. She was purely there to“do good”. Importantly, the Supreme Court distinguished between “volunteering” (which is not protected by equality law) and undertaking a “work placement” which is.

Whilst this decision may provide some comfort to employers, it is important to note that most people working for free in commercial organisations are likely to be protected under discrimination law because they are typically there to gain access to employment or vocational training.

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