Discrimination case law update (disability / philosophical belief)

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Ian: Hi, everybody. Welcome to the next edition of the employment insights podcast. My name is Ian Pace. I'm a partner in the employment team at Weightmans based in Manchester.

I'm joined again today by my colleague, Rebecca Cairney, who's a principal associate based in our Liverpool office. Hi there, Rebecca.

Rebecca: Hi, Ian. Thanks very much for having me today.

Ian: No problem. Today, we're gonna look into some recent discrimination cases, two cases in particular, on, I think it's disability discrimination and, discrimination on the grounds of of philosophical belief. That's right, Rebecca. Isn't it?

Rebecca: Yeah. Absolutely. So there's gonna be two key cases, an employment appeal tribunal or EAT decision, Rentokill Initial UK Limited and Miller. And then for the philosophical belief, we're looking at Miller and University of Bristol, which was a first instance tribunal decision from this year also.

Ian: Let's have a look at the disability discrimination case and the Rent to Kill case. Can you just talk us through the background facts of that case?

Rebecca: Yeah. Absolutely. So, mister Miller worked for Rentokill as a field based pest controller.

And less than a year after starting, he was diagnosed with multiple sclerosis or MS.

There were various adjustments made by Rent A Kill to his role, but, unfortunately, because of his condition, it transpired that he could no longer continue in that pest controller role.

So he applied for a service administrator role, but he was unsuccessful.

As he'd Rent Rent A Kill basically said he'd got irrelevant experience for that role and that he'd performed poorly in two of the application tests.

They then concluded that no further adjustments could be made for him and that there were no other suitable alternative positions available.

So he was dismissed following a capability meeting, and his internal appeal, against that dismissal was unsuccessful.

Ian: Okay. So, assuming he brought a claim for disability discrimination in the employment tribunal. What was the legal basis for that claim?

Rebecca: Yeah. So there there was two. He brought, a failure to make reasonable adjustments and also discrimination arising from disability.

So in regards to reasonable adjustments, so, obviously, the first test for a disability discrimination claim is whether somebody actually has a disability or not.

And there's obviously the legal test, set out in the Equality Act, which states that a disability means a physical or a mental impairment that has a substantial and long term impact on their ability to do normal day to day activities.

So there are some conditions which automatically satisfy the definition of disability, And so these are called deemed disabilities, and they include conditions such as HIV, cancer, and as in this case, MS or multiple sclerosis.

So in those particular circumstances, you will meet the criteria for being a disabled per person under the Equality Act, from the date that you were diagnosed.

So, whilst the claimant in this case automatically satisfied the definition of disability because he had one of those deemed disabilities, it is probably worthwhile, covering how test does operate for those who have a physical or mental impairment but don't fall into that deemed disability category.

It's usually fairly straightforward to understand whether or not somebody has a physical or mental impairment.

The question often comes down, to whether the condition has a significant long term impact on the person's ability to undertake normal day to day activities.

So this usually requires the claimant to establish that the condition has or is likely to last for more than twelve months, or, you know, the rest of their life, and that it has a significant impact on their daily activities.

So there's a lot of different factors at play, it can be a difficult question to answer, and it can become even more complex in cases involving neurodiversity, for example.

And, you know, there's plenty of examples of where you're likely to need further medical evidence and witness evidence to make that determination.

Ian: Yeah. Like, that that's my experience as well. You know, it's often easy to understand whether someone has a physical or a a mental impairment, you know, whether that be a bad back or whether it be, you know, a mental health condition.

The key question often comes down, doesn't it, to whether that condition is gonna last more than twelve months or is gonna be with that person for the rest of their life, and and particularly whether or not the condition has a significant impact on the daily activities as you said. I mean, what it usually, as you know, Rebecca, comes down to is, whether or not we need medical evidence on that point.

If a claim has brought the employment tribunal and and a witness statement, where that claimant has to provide further details in terms of what they can and can't do, giving practical examples. So it is often a tricky question, but as you say, in this case, this is one of the deemed disabilities. So he automatically ticked the box, didn't he?

Rebecca: Yeah. Absolutely.

And then so one of his disability claims was a failure to make reasonable adjustments.

So under section section twenty of the equality act, there is a duty on employers to make reasonable adjustments to help disabled employees.

And the duty arises where a disabled person is placed at a substantial disadvantage by a provision criterion or practice or, otherwise known as a PCP, a physical feature of the employer's premises or the requirement for an auxiliary aid. It is for the employment tribunal to determine whether a particular adjustment would have been reasonable in the circumstances.

The Equality Human Rights Commission code states that if an employer has failed to make a reasonable adjustment, which would have prevented or minimized an employee's disadvantage or their unfavorable treatment, then it's then gonna be very difficult to show that any treatment was objectively justified for the purposes of a discrimination arising from disability claim.

Rebecca: So just on that, you know, the the legal test for discrimination arising from disability, which was the other, the other type of disability claim presented in this case, was where somebody is treated unfavorably because of something arising in consequence of their disability, and there is an opportunity for employers to show that any such treatment, you know, even if it is unfavorable treatment and it's, you know, to do with the the individual's disability, to show that that treatment is a proportionate means of achieving a legitimate aim, so an objective justification test.

But as I've just referred to, the the Equality and Human Rights Commission code basically states that if you fail to make a reasonable adjustment, it's then gonna be really difficult for you to objectively justify any unfavorable treatment resulting from that.

Ian: Yeah. That make that makes sense. Just going back onto that PCP point you mentioned, could you just give a bit more information in terms of a PCP, what that might look like in practice, and any examples of what might be a PCP?

Rebecca: Yeah. Absolutely. So it it it's anything that's essentially applied by an employer. So, for example, it can be as straightforward as a policy.

So, you know, an attendance policy, for example, that says that the aim of the policy is to encourage all employees to, maintain high or appropriate standards of attendance and that that quite clearly could place disabled employees at a disadvantage compared to nondisabled employees because they're more likely to have absences due to their medical conditions, for example.

Ian: Okay. That makes sense. So something applies to everybody, but disadvantages them. Got you.

Yes. Okay. So what was the, what was the outcome then? What was the decision in the, in the case?

Rebecca: Yeah. So in the first instance, the tribunal found that it would have been reasonable for, or it would have amounted to a reasonable adjustment for Rent two Kill to have offered that administrative role on a trial period basis, and even went as far as to say that Rentokil could have retrained the employee for that administrative role.

They did not agree that the claimant had irrelevant experience.

It was a support role. He'd been doing something similar for two and a half years.

His technician role that he was in when he joined Rentokil had, a number of administrative elements to it, and they would have been sort of transfer transferable skills, that would potentially have been relevant to the support role as well.

They highlighted a lack of experience in using Microsoft Excel.

The tribunal found that that could have been addressed by providing him with appropriate training.

He had scored poorly. So I mentioned that there were two tests, as part of the application for that admin administrative role, that he'd performed quite poorly on, and they were a written maths and a verbal test.

And they were taken by all of the candidates for that role. But it wasn't clear as part of the tribunal claim whether he had had to pass similar tests when he'd become a technician, because, obviously, that role is something that required both verbal and mathematical skills. So they said that the trial period could have addressed any concerns that related to his poor performance on those tests.

So the tribunal had pointed out that the the employer's process had seemed to focus on whether he should be appointed rather than whether he could do the role, and should have been offered it as a reasonable adjustment. And so they they went as far as to say that Rent two Kill should have offered it to him on a trial basis and and kind of taken it from there.

Ian: Yeah. That that seems to make sense, doesn't it? Because as you were saying, the the the duty to make reasonable adjustments is to to take the steps as reasonable to to avoid that disadvantage. So you can see how the ATCs come to the decision here that a trial period actually alleviates the disadvantage or has a prospect of alleviating it.

You know, it might be the case that, you know, he may have done that role, and he may not be very good at it. But putting in place the trial period would have actually given him the opportunity would have alleviated that disadvantage. I think it's just probably worthwhile remembering that, you know, it's well established that an adjustment doesn't need to be guaranteed to work it to to alleviate that disadvantage. It just has to have that prospect of alleviating the disadvantage.

So that seems to me to be a to be reasonable decision, sensible decision, and it's obviously something that employer need to be thinking about, particularly for redundancies, doesn't that? Or is there anything else that you think might mean for for employers?

Rebecca: Yeah.

I mean, I think it just, as you say, highlights the importance for employees to consider what adjustments they can make for their employees.

So if an employee proposes, you know, an adjustment, it it's important that the employer does carefully consider whatever's put on the table, and, you know, has a has a real think about whether they can be accommodated or not. As you say, it doesn't need to be a a permanent fixture. It can be done on a trial basis to see if it works for both the employee and the employer in the long run.

I think it's really important that if an employer decides it would not be reasonable to offer a trial period in an an alternative role, then they should look to obtain evidence as to why that is the case, particularly where dismissal is a very real alternative.

I think this case demonstrates that dismissal dismissal should be, very much a last resort, and it does hang like the onus on employers to do what they can to avoid it.

Ian: Yeah. I agree. And and , aside from the disability discrimination claim, if the individual is dismissed, then more likely than not, if they find their disability discrimination, that's going to lead to a finding of of unfair dismissal as well, isn't it? That's that's really helpful.

Just moving on to that philosophical belief discrimination case.

Before we go into the case itself, would you would you mind just letting us, know, what would qualify as a protected philosophical belief in employment law?

Rebecca: Yeah. Of course. So, we know that religion or belief is a protected characteristic onto the Equality Act.

Religion is defined as any any religion, and it can also include a lack of religion.

Similarly similarly, belief can mean any religious or philosophical belief, and can also include a lack of belief.

So, hopefully, that sets it out. It is it's quite complicated. But, there there's a two thousand and ten case of Granger PLC and others versus Nicholson, and I think that sets out the requirements of what can be considered a protected philosophical belief, a lot more clearly. And what that said was that the belief must be genuinely held, it must be a belief, not an opinion or a viewpoint based on the present state of the information available.

It must be a belief as to a weighty and substantial aspect of human life and behavior, and it must attain a certain level of cogency, seriousness, cohesion, and importance, and be worthy of respect in in a democratic society.

So not be incompatible with human dignity and not conflict with the fundamental rights of others. So, essentially saying that it has to be something that's genuinely and importantly held as a philosophical belief, not just, you know, an opinion that you you believe at at one time or another.

Ian: Okay.

I think there was a case on this a few years ago, wasn't there, about, ethical veganism?

Rebecca: Yes. Veganism was found to be a philosophical belief, wasn't it? So it just goes to show really, I suppose, it's it's worth erring on the side of caution really in terms of if someone does have a belief that it may well qualify as a philosophical belief. Yeah. Okay. So the Miller case then, do you want to just talk us through the facts of that case?

Ian: Yeah. Absolutely. And and I do think it's really important to stress that it is quite fact sensitive, so it should be looked at on a kind of case by case basis.

But but here, we have doctor Miller, who was a professor of political sociology at the University of Bristol, and he held anti Zionist beliefs.

He was dismissed in twenty twenty one, following comments that he'd made that included Zionism is and always has been a racist, violent, imperialist ideology premised on ethnic cleansing.

It is an endemically anti Arab and Islamophobic ideology. It has no place in any society.

So he was dismissed following those comments, and he brought claim to the employment tribunal stating that those comments and other similar comments for which he was dismissed, simply manifested his anti Zionist beliefs and that in dismissing him, the university had directly discriminated against him because of those beliefs.

So in his evidence, the claimant said that his beliefs were not directed towards the Jewish people, and he said that they were not racist.

His belief was that the way the state of Israel was created and its impact on others was imperialist, whereas his belief was in anti imperialism.

So the case, as you can probably imagine, raised several contentious issues.

However, the tribunal concluded that based on the evidence given, the claimant's belief was a philosophical belief about anti Zionism.

The case, it doesn't create a precedent, and certainly not for all anti Zionist views given that it's a first instance decision. And I think anybody wishing to rely on philosophical belief as a protected characteristic would need to still show that their beliefs satisfy those those tests that we've just talked through. Again, so I think it's just really important that it is, you you know, it's something that's looked at on a case by case basis.

Rebecca: Yeah. Absolutely. And I think that's the case with the this type of discrimination, isn't it? Because of the the nature of the claim that, yeah, it's worth Aaron, I suppose, on the side of the caution and and just considering whether or not that belief, regardless of what it might be, could or could not qualify as a as a philosophical belief. What do you think it does mean though in terms of what can we take away from it more generally for employers?

Rebecca: Yeah. I think it's it's a valuable reminder for employers and, you know, it shows that even if they find that an employee has views that are difficult, provocative, uncomfortable, you know, contentious, they must carefully consider and and apply the law properly before deciding what to do in those circumstances.

You know, everybody has the right to freedom of thought and religion and beliefs, and difficulties can arise when when there's conflict between those. And so I do think it creates a a difficult balancing act for employers in trying to sort of, you know, get through all those different beliefs and, you know, religions and, you know, especially where where there are conflicts.

Ian: Yeah. No. That's that's been really helpful, Rebecca. Thanks very much. That's been a really helpful update just in terms of the most recent cases on discrimination law. So I do hope you've found that, helpful.

Do keep an ear out for for some other employment law updates, by subscribing to our podcast channel, Employment Law Insights, which you can find on all of the usual places.

But for now, if you if you do need any assistance with anything employment related, then do please contact either me by email on ian dot pace at waymans dot com or rebecca at rebecca dot kernie at waymans dot com. All the details are also on the website.

In the meantime, thanks, Rebecca, for providing us with those really helpful updates.

Rebecca:Yeah. No problem at all, Ian. Thank you.

And finally, thanks everyone for listening. And, yeah, hopefully tune in soon.