Employment Law Update | October 2019

Welcome to the latest edition of our monthly employment law update. We keep track of the latest employment law changes so you don't have to!

• • Are vegetarians entitled to protection from discrimination due to their beliefs?
  • How long does a condition need to last for it to be a disability?
  • Who is to blame for poor mental health?
  • Are the number of employment law claims still increasing?
  • Labour Party proposals

If you wouldlike to discussany of the issues raised below, please don't hesitate to contactLiz Henry orJames Austin

Are vegetarians entitled to protection from discrimination due to their beliefs?

The Equality Act states that workers are protected from discrimination on the grounds of religion or belief. It is well established that in order for something to qualify as a "belief" it must:

• Be genuinely held
• Be worthy of respect in a democratic society
• Concern a weighty and substantial aspect of human life and behaviour
• Attain a certain level of cogency, seriousness, cohesion and importance

In Conisbee v Crossley Farms Ltd, an employment tribunal has held that vegetarianism doesn't satisfy the last two limbs of this test on the basis that vegetarianism is a lifestyle choice and is adopted for many different reasons.

As it was only at employment tribunal level the decision isn't binding. It is also unlikely to be the last we hear of claims of this type.

How long does a condition need to last for it to be a disability?

In order to satisfy the Equality Act definition of disability a worker needs to have an impairment which has a substantial adverse effect on their ability to carry out normal day to day activities and that impairment has to have lasted, or be likely to last, for 12 months or more. There are also some exceptions which are automatically accepted as disabilities, for example, cancer.

In Parnaby v Leicester City Council Mr Parnaby had suffered from depression caused by work related stress between January and June 2017. He was dismissed in June 2017 because of absences caused by his depression and claimed this amounted to discrimination.

In order to decide the case the employment tribunal had to determine whether Mr Parnaby was disabled. It decided he wasn't because it felt that when Mr Parnaby's employment ended in June 2017 his work related stress ended, and this in turn would remove the depression. Mr Parnaby appealed to the Employment Appeal Tribunal (EAT) arguing that the test was whether the depression would have been likely to continue for more than 12 months if he had not been dismissed. The EAT agreed with Mr Parnaby and sent the case back to a different tribunal to determine that question.

In essence this means that if dismissing someone might prevent an impairment lasting more than 12 months it won't prevent that person from bringing a claim of disability discrimination.

Who is to blame for poor mental health?

Clearly this isn't an easy answer to provide. Worryingly a report by Business in the Community and Mercer Marsh Benefits alleges that in the past year 39% of workers suffered poor mental health because of their job. The report also states that seven in ten managers reported that they had encountered barriers when trying to provide mental health support.

Are the number of employment law claims still increasing?

The Ministry of Justice has published the latest employment tribunal statistics. They show that between April and June 2019:

• Claims increased by 14%
• Disposals decreased by 3%

compared to the same period in 2018. The average length of a claim (from issuing to disposal) increased from five to 33 weeks over the same period.

The latest statistics also showed that in 2018/19, disability discrimination claims received the largest average award (£28,000) compared to other discrimination jurisdictions. The highest award in 2018/19 was for £948,000.

Labour Party proposals

At its recent conference the Labour Party unveiled several new employment law proposals including:

• Over the next 10 years: reducing the working week to 32 hours but with no loss of pay
• The introduction of flexible hours for menopausal women and a requirement for training of managers in firms with over 250 employees on the effects of the menopause.

These are in addition to the recent proposals put forward by Jeremy Corbyn at the TUC conference to create a Ministry for Employment Rights.

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