Wednesday, 10 April 2013

Keeping Witchcraft From The Workplace - A Practical Guide

We can start this morning with a rather cold legal analysis of how the State works to insure that those that don't share its ideals can be denied employment. Yes, it is probably a little more subtle than the North Korean equivalent, but the intention is just the same.

As it happens I believe that people should have the right to discriminate more often, but to do so on grounds of thought is distinctly Orwellian. Looking at the last paragraph it might be argued that members of a certain religion could be sacked or prevented in taking up employment across a wide range of businesses, charities and the public sector.

In this country though we quite rightly assume and trust that people are professional enough not to bring their ideologies into the workplace. All that is except members of one particular political party, who must be shunned and ostracised ,with almost religious zealotry at every opportunity. Quite a compliment really if you think about it.

For example, in Baggs v Fudge [2005], considered at a time when the 2003 Regulations expressly limited their protection to “religion, religious belief or similar philosophical belief”, an Employment Tribunal decided that the British National Party was “peculiar” and thereby rejected an employee’s claim that he had been discriminated against because he was a member.  Meanwhile in Finnon v Asda Stores Ltd [2005], British Nationalism was rejected as a philosophical belief on the basis that it did not replicate major religions.

However, the potential conflict between the Nicholson decision and earlier decisions was averted by the guidance in the final two bullet points above – the requirement for a philosophical belief to have similar cogency or status to a religious belief (reintroducing the concept of similarity which is not expressly stated in the Act), and the requirement for a philosophical belief to be compatible with human dignity.  As a result, it is likely that the Baggs and Finnon cases would reach the same result if they were heard today.

So, political beliefs may count as beliefs under the Act, however, the more extreme they are the less likely it is that they will.  Why is this relevant?  Well, protection from discrimination extends not only to employees but also to job applicants.  Consequently, employers risk acting unlawfully if they base recruitment decisions, select job applicants or set terms of employment on the grounds religion or belief.

Employers will also potentially be liable for the discriminatory acts of their employees, agents and third parties.  In the case of employees, an employer may be able to utilise the “reasonable steps” defence if it can show that it took all reasonable steps to prevent discrimination occurring in the course of the employee’s employment.  However, this defence is not available to employers acting as principals in respect of their agents.

Further, as things currently stand, in certain circumstances an employer may be treated as harassing an employee if it fails to take reasonable steps to prevent discrimination by a third party.  Given that members of the press or the public arguably count as third parties under the Act, this raises some testing issues.  An employee might even argue that their employer’s failure to take reasonable steps to prevent discrimination itself amounts to unwanted conduct relating to religion or belief.  With the rise of social media it will be difficult for an employer to argue that they were unaware that a high profile employee was being harassed.

Looking at the law away from the Act provides more reason for caution when dealing with political beliefs.  In Redfearn v United Kingdom [2013] the European Court of Human Rights held that UK law should specifically protect employees dismissed on the ground of political opinion or affiliation, regardless of how extreme or distasteful.  This places Parliament under pressure to give all employees the right to claim unfair dismissal if they have been dismissed because of their membership of a political party.  However, even if the law is changed, extreme political views are still likely to fall outside the protection of the Act, whilst dismissal for membership of a political party is unlikely to become automatically unfair in which case employers will retain the ability to argue that dismissal was justifiable for “some other substantial reason” (for example, effect on the reputation of the business).

In summary then, beliefs clearly will affect an employee’s suitability for a job, with the more high profile appointments attracting the greater scrutiny.  This is as much true from a question of practicality as it is from a legal point of view.  However, the focus for employers should be on asking the right questions at interview and conducting the necessary investigation to be confident that they employ individuals whose beliefs are not incompatible with those of the organisation, or society at large.