REWARD
Employment law latest
Nicola Mullineux, senior employment specialist for Peninsula, explores the interesting outcomes of three different recent employment law cases
Owen v Willow Tower Opco An employment tribunal (ET) had to determine whether a care home worker, who was under a legal obligation to have the Covid vaccine to continue in her role, was discriminated against because she was vegan when she was dismissed for failing to get vaccinated. In June 2021, the respondent care home decided to require all staff and contractors who entered the building to be vaccinated against Covid. At that point, there was no legal obligation in place for care home workers to be vaccinated; that was to come later. In August 2021, the claimant raised a grievance regarding harassment and victimisation, along with detriment and discrimination around her working hours. There was no mention in this grievance of the fact the claimant was vegan, nor in a later grievance which was merged with this. During that month, the respondent wrote to all employees informing them that new laws required care home workers in England to have the Covid vaccine by 11 November 2021 for them to continue in their role. It was made clear that those who weren’t vaccinated by that date would be redeployed. The claimant was informed she would be allocated to alternative duties, likely to be in the kitchen or the laundry. A grievance hearing was held, during which the claimant explained she believed she was exempt from the requirement to have the vaccine because she followed a vegan diet and so refused to have
a vaccination which contained animal products. The claimant also raised concerns about the efficacy of the vaccine and its potential side effects. An occupational health referral was arranged to investigate if she was exempt from the requirement to be vaccinated but no evidence was found that she was. “The employment tribunal ruled that she had failed to prove she genuinely held the belief; this is one of the essential elements that claimants must demonstrate to pass the legal test on philosophical belief” The claimant then produced a certificate from her trade union detailing that she was exempt from vaccination. A meeting was arranged to discuss her vaccination status; it was clear then she had no intention of having it. The claimant’s employment was terminated on 12 November 2021 because, due to the absence of a genuine exemption, the care home was no longer legally able to employ her in her role. She brought a claim for philosophical belief discrimination; her
belief in ethnical veganism was the reason she was dismissed. Before the ET, she gave evidence that she had refused to be vaccinated because it wasn’t clear if the vaccine had been tested on animals. She further said that she didn’t use products which had been tested on animals or contained animal products. Neither did she consume products that contained animal contents. She said she didn’t wear leather, but when asked about woollen products, she shrugged. The claimant couldn’t say when she became a vegan nor show how her lifestyle had been modified or structured around her belief, other than her diet and use of vegan products. The claim was therefore unsuccessful. The ET ruled that she had failed to prove she genuinely held the belief; this is one of the essential elements that claimants must demonstrate to pass the legal test on philosophical belief. Cox v Secretary of State for the Home Department and other cases The Court of Appeal (CoA) has held that a unilateral change of contractual terms shouldn’t be treated as having implied consent from employees. This is even where they’ve continued to work for some years under the changed terms, unless the employer can show unequivocal acceptance of that variation by those employees. This case relies on the principles of
| Professional in Payroll, Pensions and Reward | September 2023 | Issue 93 46
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