Update to race, religion and belief discrimination legislation

10 Aug 2020 By Harry Poland

The last 12 months have seen several significant case law developments in this area, as Harry Poland reports

Ethical veganism is capable of being a ‘philosophical belief’

Casamitjana Costa v League Against Cruel Sports

Mr Costa was dismissed by the respondent for gross misconduct (breach of confidentiality, by disclosing that his company pension fund was investing in companies involved in animal testing), though he alleged that the dismissal was actually based on his belief in ethical veganism. 

A key point here was the extent of Costa’s dedication, as it went far beyond dietary choices. He went so far as to refuse to live with pets or be in a relationship with a non-vegan and even avoided getting the bus for fear of insects being killed by it. 

The tribunal found in favour of Costa. They held that he genuinely and sincerely held his beliefs, as evidenced by the sweeping consequences that his beliefs had on his life, and that ethical veganism is a belief that obtains a high level of cogency, cohesion and importance. 

This ruling is significant, though it is important to note that this decision was based on the extent of Costa’s ‘ethical’ veganism, and so it is unlikely that veganism will enjoy the same protection. 

Owning your copyright is not a ‘philosophical belief’

Gray v Mulberry Company (Design)

The respondent required employees to sign a copyright agreement as a condition of employment. The claimant was, outside of work, a filmmaker and writer, and was concerned that the agreement would extend to her creations outside work. Despite reassurances from the respondent and amendments to the agreement, the claimant refused to sign because of her belief in the ‘human or moral right to own the copyright and moral rights of her own creative works and output’, and was subsequently dismissed.

The tribunal dismissed her claim, ruling that simply agreeing that copyright theft was a bad thing did not amount to a belief that carried a sufficient level of cogency and cohesion, and that her claim would have failed anyway, as her dismissal was down to her refusal to sign the agreement, not because of her beliefs.

Refusing to hire an interviewee because of her race breaches the implied term of trust and confidence in a black employee’s contract

Hobbs v Avon Care Homes

The claimant, a black woman, assisted the regional manager of the respondent in carrying out interviews for a care home manager. An offer was submitted to Mrs Mills, which was later withdrawn when the managing director discovered that Mills was black. Because of this, the claimant resigned and brought a claim for constructive unfair dismissal. 

The tribunal held in favour of the claimant, as they held that the respondent’s instruction for her to be complicit in illegal recruitment practices breached the implied term of trust and confidence in her employment contract. 

DWP ordered to pay employee almost £400,000 following age and race discrimination

Giwa-Amu v DWP

Ms Giwa-Amu joined DWP as one of nine trainees, of which she was the only one who was non-white and aged over 50. Over the course of her five-week induction, she was subjected to numerous instances of racism and ageism, resulting in her being signed off with stress and depression. 

The tribunal awarded Giwa-Amu £386,000 compensation, including £42,809 for injury to feelings, placing the award in the highest Vento band, reserved for the most serious cases. The tribunal considered that the discriminatory actions, being those of a group rather than one individual, caused far greater harm to her feelings as she felt ostracised from the group and that her confidence was breached by managers who discussed her concerns with staff after she reported them. The award demonstrates how seriously tribunals take such complaints of discrimination. 

Harry Poland is a member of the employment law team at McGuireWoods

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