Professional March 2020

Reward

which stated that the employee’s belief in the right to own the copyright of ‘her own creative works and output’ does not qualify as a philosophical belief under the Equality Act 2010. The employee, Grey, was dismissed by the organisation after refusing to sign a copyright agreement as a condition of her continued employment. This agreement effectively required her to assign ownership of any creative work she produced on behalf of the company. Following dismissal, Grey brought claims for direct and indirect discrimination to the ET believing she had suffered an unlawful detriment by refusing to sign. In doing so, she argued that the requirement to sign the agreement had gone against her belief in the “statutory human or moral right to own the copyright of her own creative works and output”. The ET dismissed both claims, explaining that the employee had expressed her belief in relation to her right to create, produce and write, which was fundamentally different to the belief she purportedly held to own the copyright of this work. As such, this belief did not meet the criteria of attaining a level of cogency and cohesion required under the Equality Act 2010. The ET went on to outline that even if her belief did amount to a protected characteristic, the employee had not suffered direct discrimination, as any employee who refused to sign the agreement would have been dismissed. She had also not suffered indirect discrimination as no evidence had been presented that the provision, criterion or practice in question, namely that all employees should sign the agreement, would not have been acceptable to others who shared her belief. Furthermore, they also accepted that the agreement represented an important means of achieving a legitimate aim for the organisation to protect intellectual property. Undeterred, Grey appealed to the EAT, arguing that the ET had erred in finding that her belief did not amount to a philosophical belief and that she had not been indirectly discriminated against. This was because, in accordance with the European Convention on Human Rights, there was no need for claimants to establish a group disadvantage in indirect discrimination for philosophical belief claims.

the employee reported this to the company’s human resources department. Following this, she was provided with a new team leader and proceeded to take time off due to work-related stress. During her absence, the company’s head of sales operations (HSO) considered whether the employee’s performance issues meant her employment should be terminated. Referring to emails between the employee and her previous line manager, which did not contain details about the earlier allegation, the HSO decided to dismiss. Although the employee appealed and insisted that she was “sacked for telling the truth”, her dismissal for unsatisfactory performance was upheld. The employee proceeded to bring claims to ET for automatic unfair dismissal under the Employment Right Act 1996, on the grounds that she was dismissed for making a protected disclosure. The ET found that the claimant had made protected disclosures, and been subjected to a detriment as a result. However, she had not been automatically unfairly dismissed as the HSO had genuinely believed she was a poor performer. The decision had been made based on the information available at the time and, specifically, was not a result of the protected disclosures. On appeal, the EAT disagreed. They found that an organisation is responsible for the decision made without the true facts, where these have been manipulated by a manager responsible for the employee concerned who is aware of these facts. The mind of both the decision maker and the reason and motivation of the claimant’s line manager had to be taken in to account. On appeal, the Court of Appeal agreed that unfair or even unlawful conduct from colleagues or managers is immaterial unless it can be properly attributed to the organisation. The Court stated that tribunals should only focus on the mental processes of the person, or persons, who made the decision to dismiss. The employee sought a final resolution from the Supreme Court which supported her claim explaining that when faced with an unfair dismissal claim courts must establish the real reason behind the dismissal. If the real reason is actually hidden behind one that is ‘invented’, courts need to look beyond this rather than allow it to affect their determinations. n

However, the EAT dismissed her appeal and explained that, when determining if a belief is a philosophical belief, the assessment should consider the manifestation of that belief. Importance should be placed on whether doing or not doing an act amounts to a direct expression of this belief as opposed to simply being motivated by it. ...hidden real reason that should be taken as the true reason... The EAT further held that the ET had not erred in law when applying the group disadvantage requirement. This was because, in their view, it would be incorrect to disregard group disadvantage requirement in philosophical belief discrimination cases, even if a claimant is the sole adherent of a particular belief. The employee appealed to the Court of Appeal, which also dismissed her claims. Although the court did not endorse the EAT’s earlier judgment on the appropriate method for determining philosophical belief, it held that it was not possible to ignore the requirement of establishing group disadvantage in an indirect discrimination on the grounds of philosophical belief. Royal Mail Group v Jhuti The Supreme Court ruled that in situations where the real reason behind the decision to dismiss is hidden from the decision maker, it is the hidden real reason that should be taken as the true reason for dismissal. Jhuti had worked for the employer for six months when she raised an issue with her line manager, claiming one of her colleagues had breached company rules and OFCOM guidance. At a meeting her team leader encouraged her to withdraw her allegations on the grounds that she misunderstood the rules. At the same time, the team leader informed the employee for the first time that he had issues with her performance. In the intervening period the claimant was placed on improvement targets by her team leader and given an “ever changing, unattainable list of requirements”. Believing this was due to her previous allegations,

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| Professional in Payroll, Pensions and Reward |

Issue 58 | March 2020

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