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November 2009 Updates

Discrimination and the meaning of “Philosophical Belief”

The Employment Appeal Tribunal has held in Grainger plc v Nicholson that a limit must be placed upon the definition of “philosophical belief” for the purpose of the Employment Equality (Religion or Belief) Regulations 2003. It held that the criteria of a “philosophical belief” are:

  • A belief must be genuinely held.
  • It must be a belief and not an opinion or viewpoint based on the present
    state of information available.
  • It must be a belief as to a weighty and substantial aspect of human life and behaviour.
  • It must attain a certain level of cogency, seriousness, cohesion
    and importance.
  • It must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.

In this particular case, a belief in man-made climate change was deemed capable of being a “philosophical belief”.

Volunteers not covered by the Disability Discrimination Act

In X v Mid-Sussex CAB, the Employment Appeal Tribunal held that the Claimant, a part-time volunteer advisor at the CAB who left in circumstances which allegedly amounted to discrimination on grounds of disability, was not protected by the Disability Discrimination Act or the European Union equal treatment legislation.

The Claimant's claim was struck out for the following reasons:

  • “Employment” in the European Union legislation requires a material contract between the parties. In this case, there was no such contract.
  • There is no case law to suggest that “occupation” (the key term here) alludes to unpaid employment.
  • The European Union legislation offers protection only in relation to “access” to occupation.

Whistleblowing and the meaning of “Disclosure Information”

In Cavendish Munro v Geduld, the Employment Appeal Tribunal has expressed its standing on what it means to “disclose information” in the context of a whistleblowing claim. It held that:

  • To make a protected disclosure, it is necessary to disclose information about a situation. In other words, you have to convey facts rather than just make allegations.
  • There is a distinction between “disclosing” and “communicating” information, even though a disclosure can be made to a person who is already aware of the information.

In this particular case, the Claimant's solicitor wrote a letter to the Claimant's employer, complaining about his treatment. The letter triggered the Claimant's dismissal. The Employment Appeal Tribunal held that as the letter from the Claimant's solicitor didn't contain a disclosure (because it didn't contain any facts), there was no protected disclosure.

“Stigma loss” recovered through compensation

The Employment Appeal Tribunal has held in Chaggar v Abbey National plc & another that where someone finds it difficult to find employment because of the negative stigma attached to making a discrimination claim against a previous employer (otherwise known as “stigma loss”), this loss can be recovered through compensation by that employer. This compensation can't, however, be recovered as a separate head of loss. It must be incorporated into the decision-making process regarding how long the Claimant will remain out of work.

Vento guidelines in discrimination claims revised to take
account of inflation

The Vento guidelines, which are used to assess compensation for injury to feelings in discrimination cases, have been updated to take account of inflation. As a result, the top of the lower band has risen from £5,000 to £6,000, the middle band has risen from £15,000 to £18,000 and the upper band has risen from £25,000 to £30,000.

Disability discrimination and reasonable adjustments

Employers do not need to make reasonable adjustments for a person's disability in certain circumstances. The Employment Appeal Tribunal has held in DWP v Alam that when deciding whether or not reasonable adjustments should be made, the following two questions must be answered:

Did the employer know both that the employee was disabled and that their disability was liable to affect them in the manner specified in the Disability Discrimination Act (i.e. where (a) a provision, criterion or practice applied by or on behalf of the employer, or (b) any physical feature of premises occupied by the employer, places the disabled person at a substantial disadvantage in comparison with persons who are not disabled)?

If not, ought the employer to have known both that the employee was disabled and that their disability was liable to affect them in the manner as set out in point 1 above?

If the answer to both of those questions is “no”, the employer is exempt from any duty to make reasonable adjustments.


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SRA number 404293