We are pleased to provide you with the Herrington Carmichael LLP employment law update for January 2020.

This is a key note summary of some of the main developments in employment law in the last month.

1. Philosophical Belief Discrimination

There have been two cases this month relating to two different “philosophical beliefs” with Claimant’s asserting that their belief should be protected by the Equality Act 2010. In the first case of Forstater v CGD Europe and others, the Employment Tribunal considered whether the Claimant’s belief that a person’s sex is an immutable biological fact is a philosophical belief, protected under the Equality Act. The Employment Tribunal ruled that it is was not because, despite the Claimant having a true belief in it, the belief itself is incompatible with the fundamental rights of others and is not ‘worthy of respect in a democratic society.’

In the second case of Casamitjana v League against Cruel Sports the Employment Tribunal held that ethical veganism is capable of being protected as a philosophical belief. The full details of this judgment have not yet been released, however this decision appears to be on the basis that it is worthy of respect and does not conflict with the fundamental rights of others.

These two decisions are only first instance decisions and are therefore not binding on higher courts, however, these points could be appealed. These rulings both have the potential to have a large impact on the way in which some individuals are treated in the work place and beyond.

2. “No Beard” Policy amounts to indirect discrimination against Sikhs

In the case of Sethi v Elements Personnell Services Ltd, it was held that a recruitment agency had indirectly discriminated against an employee, on the grounds of religion, through its ‘no beard’ policy. The Employment Tribunal also noted this policy may well amount to a ‘no Sikhs’ policy which may also potentially be direct discrimination.

The Claimant, is a Sikh who does not cut his hair for religious reasons. While he was in the UK, he was seeking employment in five-star hotels through the Respondent recruitment agency. Following his induction and initial training with the agency, he was asked to cut his beard and he refused to do so on the grounds of his religion. The recruitment agency argued that facial hair causes a health and safety and hygiene concerns, and subsequently refused to employ the Claimant in to any role. The Employment Tribunal rejected this justification and said that the Respondent had failed to provide evidence to support the policy. They also commented that not all hotels have a no-beard policy, as a hair net would usually address any hygiene concerns.

This case serves as a useful reminder that Employers should consistently review their policies and ensure that they can provide justification as to why any such policy is needed. This method will inevitably lower the risk of any indirect discrimination claims arising out of company policies and ensure that there is a legitimate and proportionate reason if policies like this are required.

3. No Comparator for Direct Sex Discrimination claim relating to non-payment of allowance during Maternity Leave

In the recent case of City of London Policy v Geldart, the Employment Tribunal held that it was direct sex discrimination for the City of London Police to not pay an employee on maternity leave her ‘London Allowance’.

The Claimant is a serving Police Officer in London, and so entitled to a London Allowance. The Claimant went on maternity leave. Her London Allowance was stopped when her maternity pay ceased during her maternity leave. The Claimant bought a claim on the basis that she should have received the London Allowance in full throughout the period of her maternity leave. Initially, the Employment Tribunal upheld her claim and the Respondent appealed. The Employment Appeals Tribunal (“EAT”) upheld the original decision stating that there was nothing to stop the allowance being paid, noting that the allowance is also payable to officers who are suspended from duty. It was therefore held that not paying the London Allowance was a form of direct sex discrimination.

The EAT referred to the case of Webb v EMO Air Cargo. In that case it was held that where a woman had been discriminated against on grounds of pregnancy or maternity, this was sex discrimination. Given the nature of pregnancy/maternity discrimination, it is not possible to identify a comparator. The EAT confirmed that Ms Geldart did not need a comparator for her sex discrimination claim. This was even though the Equality Act had introduced a new protected characteristic of pregnancy/maternity (which Ms Geldart was not claiming).

This case confirms that where a woman is treated less favourably on the basis of maternity and/or pregnancy, she may rely on the principle that a comparator is not required – even if the claim is brought as a sex discrimination claim.

4. Workplace Pension and Automatic Enrolment

The Pensions Regulator (‘TPR’) has ordered that a Recruitment Agency, SKL Professional Recruitment Agency Ltd, pay £10,890 for avoiding their workplace pension duties.

The Company’s Managing Director, Mr Kadzere, falsely declared to TPR that he had automatically enrolled 22 members of staff on to the pension scheme. His staff made various whistleblowing reports and, in response, TPR conducted an investigation in to the company. It was discovered that a pension scheme had been set up but staff had not been enrolled on to it correctly and pension contributions deducted from staff pay were not paid into the scheme.

This matter serves as a useful reminder that Companies are legally obliged to comply with their duties under the Pension Act and ensure that they are making the correct contributions to employee’s pension schemes. It is therefore vital that employers are aware of their obligations and seek legal advice should there be any concerns regarding this.