We are pleased to provide you with the Herrington Carmichael employment law update for October 2019.

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

1. A win for HMRC in the latest IR35 case:

Ahead of the major changes to the IR35 regime due to come into effect in April 2020, we are seeing a more publicity around cases coming through the courts against individuals providing services to the public sector. Tim Willcox, David Eades and Joanna Gosling have been the latest presenters to be targeted by HMRC. This judgement follows a number of defeats against HMRC including claims against ITV presenter, Lorraine Kelly and Talksport radio host, Paul Hawksbee earlier this year.

The three presenters argued that they were self-employed, but in this instance, the decision ruled in favour of HMRC. There was sufficient mutuality and control in place to find that the relationship of the presenters to the BBC was that of “assumed employment”. The court did not find, however, that the presenters or their accountants had been ‘careless’ in their approach to their tax affairs. This meant is that HMRC could only recover unpaid tax back from up to four years. Had HMRC been able to prove that the presenters had acted carelessly, this could have been extended to six years.

With the combined tax bill of the presenters amounting to £920,000, this will come as a concern to other individuals who work through a personal service company, as HMRC seem likely to continue investigating this industry.

From 6th April 2020, it will be the responsibility of all medium and large-sized private sector bodies to determine whether contractors fall within the IR35 legislation. As such, this judgement further illustrates the importance of correctly identifying the employment status of any contractors your business engages with.

2. Was massaging a junior employee sexual harassment?

In Raj v Capita Business Services Ltd, a male employee brought a claim against the company and his female team leader for harassment. It was alleged that on several occasions, the team leader had stood behind him and massaged his neck, back and shoulders. Mr Raj argued that this conduct was either unwanted conduct of a sexual nature or unwanted conduct relating to his sex.

The Employment Tribunal concluded that the massage had taken place and, although it satisfied part of the definition of harassment, the contact was not ‘related to sex’ nor was the conduct ‘sexual in nature’. Instead the Employment Tribunal found that the contact was ‘misguided encouragement’ on the part of the team leader. Additionally, it found that the massaging was on ‘gender neutral’ body parts. This decision was upheld at the Employment Appeal Tribunal (“EAT”).

This decision highlights the importance of satisfying all of the relevant legal tests of their claim. It would, however, be unwise to rely on this case as creating authority that massaging your employees or colleagues is appropriate. In any event, having an appropriate anti-harassment policy or training process is recommended.

3. Lower band injury to feelings awards

In the case of Komeng v Creative Support Ltd, the claimant successfully brought a claim for direct race discrimination against his employer. The Employment Tribunal found that Mr Komeng had been and was awarded £8,400 for injury to feelings by reference to the lower Vento Band.

Mr Komeng appealed to the EAT, arguing that given the seriousness of his employer’s actions, he should have received a higher award. The EAT, however, confirmed that it was the impact of the act on Mr Komeng that should be considered, not the gravity of his employer’s actions. The EAT also confirmed that it was not only one-off acts that may fall within the lower Vento band.

This case serves as a reminder to employers an Employment Tribunal will look at the effect on the employee, rather than the gravity of how the employer acted. Whilst in this case, the Employment Tribunal considered Mr Komeng to be particularly ‘resilient’, it is not unreasonable to assume that a particularly vulnerable or sensitive individual, may have received a higher award. This case shows the differing approach from the case of Base Childrenswear Ltd v Otshudi (which we reported on in our June update) in which a one off incident of discrimination gave rise to an award in the middle band, highlighting how fact sensitive discrimination cases can be.

4. Is vegetarianism a protected characteristic?

At a preliminary hearing for the case of Conisbee v Crossley Farms Ltd, the Employment Tribunal considered whether vegetarianism is a protected belief under the Equality Act.

The facts of this case were that Mr Conisbee had been employed for 5 months, before resigning and bring a claim for discrimination. Mr Conisbee argued that his belief in vegetarianism amounted to a religious or philosophical belief.

There are certain tests to establish whether a belief can be a philosophical belief, and therefore protected, under the Equality Act. While the Employment Tribunal found that Mr Conisbee’s belief was genuinely held and worthy of respect in a democratic society, it did not concern a weighty and substantial aspect of human life and behaviour, nor did it attain a level of cogency, seriousness, cohesion and importance. The Employment Tribunal held that the reasons for people being vegetarian differ greatly. It was therefore found that Mr Conisbee’s vegetarianism was not a protected characteristic.

Distinction, however, was drawn between vegetarianism and veganism. The Employment Tribunal commented that unlike vegetarianism, the belief held by each vegan is fundamentally the same. This case is interesting as it illustrates the approach taken towards religion or belief claims in previously ‘untested’ beliefs. Confirmation on whether ‘Ethical Veganism’ is a philosophical belief should follow soon, with the issue set to be heard in the case of Casamitjana v League against Cruel Sports later this year.