What Is a Protected Philosophical Belief? Court of Appeal Gives Guidance

Employees who suffer discrimination due to their philosophical beliefs are entitled to compensation – but how are such beliefs to be defined? The Court of Appeal tackled that burning issue in the case of a woman who was sacked for refusing to sign an agreement designed to protect her employer’s intellectual property rights.

copyrightOn her engagement by a luxury fashion company as a market support assistant, the woman was asked to sign what was described as a copyright agreement. It provided, amongst other things, that any discovery or invention that she conceived during the course of her employment would be the property of the company.

The woman, who was a writer and film-maker, refused to sign the agreement on the basis that it might interfere with her private creative work. She said that it was of the utmost importance to her that she retained all rights in her own artistic output. The company proposed amendments to the agreement, clarifying that it had no interest in obtaining copyright to any of her personal work. She persisted in her refusal to sign, however, and was ultimately dismissed.

She later launched Employment Tribunal (ET) proceedings, claiming that she had suffered discrimination due to her conviction that individuals have the right to own intellectual property rights in their own creative works. Her claim was, however, rejected in a decision that was later upheld by the Employment Appeal Tribunal.

In dismissing her appeal against that outcome, the Court found that the cause of her refusal to sign, and ultimately her dismissal, was her concern or theory that the agreement, even in its amended form, leaned too heavily in favour of the company or failed sufficiently to protect her own interests. Such a debate or dispute about the wording of the agreement could not qualify as a philosophical belief within the meaning of the Equality Act 2010.

What was described as her crisis of conscience about signing the agreement was not the result of her belief, but of her wish to achieve greater protection for her own creative works. The requirement to sign the agreement was applied equally to all the company’s employees and was not intrinsically liable to disadvantage a group which shared the woman’s belief. It was in any event reasonable as a proportionate means of achieving the company’s legitimate aim of protecting its intellectual property.

Are Employers Liable for Third-Party Harassment? – Guideline Decision

To what extent, if any, are employers liable for racial harassment of their staff by third parties? The Employment Appeal Tribunal (EAT) gave authoritative guidance on that issue in a case concerning a mental health nurse who was assaulted and racially abused by a patient.

HospitalThe nurse, who is black and worked in a secure mental health unit, was punched in the face several times by the patient, who threatened to stab him with a pen. The attack was accompanied by an offensive remark referring to his race. The nurse later launched proceedings against his NHS trust employer.

In upholding his indirect discrimination claim, an Employment Tribunal (ET) found that the trust had failed to take adequate steps to ensure that every incident of racial abuse by third parties against its staff was reported. Through that inaction, a culture had developed whereby employees considered that it was pointless to report such incidents on every occasion. As a result, the risk of such abuse had been under-appreciated and dealing with it under-prioritised.

The ET, however, dismissed the nurse’s direct discrimination and harassment claims on the basis that the trust’s incident reporting failure was neither consciously nor subconsciously because of race. The fact that the abuse was racial in nature played no part in the mental process of management in failing to ensure that such incidents were properly reported.

In dismissing the nurse’s challenge to that part of the ET’s ruling, the EAT noted that the Equality Act 2010 imposes no explicit liability on an employer for failing to prevent third-party harassment. It rejected arguments that Section 26(1) of the Act should be interpreted so as to outlaw foreseeable and preventable third-party harassment without a requirement that the employer’s failures are themselves related to race.

Neither Directive 2000/43/EC (the Race Directive) nor any other provision of EU law required the UK government to enact a provision to that effect. The EAT reached its conclusions despite noting that liability for third-party harassment has, in certain circumstances, much to commend it. An application for a ‘leap-frog’ order, enabling the nurse to appeal directly to the Supreme Court, was refused.

Stereotypical Racial Prejudice – Sacked Worker Wins Substantial Damages

Race discrimination in the workplace is not always overt, or even conscious, but judges are always on the alert to spot instances of stereotypical prejudice, as a Court of Appeal ruling strikingly showed.

CameraThe case concerned a black photographer who was called into her manager’s office out of the blue and told that she was being dismissed on grounds of redundancy. She immediately alleged that her race was the real reason for her dismissal, but he stridently asserted that that was a vile and entirely unjustified accusation.

Months later, after the photographer had launched Employment Tribunal (ET) proceedings, her manager stated for the first time that the true reason for her dismissal was that he suspected her of stealing stock. He said that he had preferred to give an apparently innocent reason for dispensing with her services – redundancy – in order to minimise any potential confrontation.

In ruling on the matter, the ET found that the manager had protested too much and intimidated the photographer. In awarding her over £27,000 in damages, it described evidence that she was a thief as flimsy and inferred that there was a racial element which had caused or contributed to her dismissal. The employer’s challenge to that decision was later dismissed by the Employment Appeal Tribunal.

In rejecting the employer’s appeal against that outcome, the Court acknowledged that it was a borderline case. However, it noted that the ET would have been well aware that some misguided people do, not always consciously, have prejudices against black people which predispose them to suspect misconduct.

The Court found that the manager’s persistence in lying about the true reason for the photographer’s dismissal was a defensible basis for the ET’s conclusion. If he genuinely believed that she was guilty of theft, he may plausibly have been influenced in reaching that conclusion, so hastily and on so little evidence, by a stereotypical prejudice based on her race.