Employment and Equality experts, Jones Cassidy Jones, have agreed to write a quarterly report on equality law developments that will impact in Northern Ireland and beyond.

Today's article has been written by Partner Alison Collins and covers the following:

1. Grant v HM Land Registry [2011] EWCA Civ 769 (Sexual Orientation)

2. Jackson v CNV Ltd ET/2600377/11 (Religion or Belief Discrimination)

3. Jain v Teachers 2 Parents Limited (2011) (Race Discrimination)

4. Maistry –v- BBC (2011) (Philosophical Belief)

5. Basile v Royal College of General Practitioners and others (Race Discrimination, Sex Discrimination and Harassment)

===========================================
1. Grant –v HM Land Registry and Equality and Human Rights Commission (2011).

Mr. Grant was gay and worked in HM Land Registry in its Lytham office. Whilst he did not initially disclose his sexual orientation to his colleagues in that office, after a period of time he was open about it. After being promoted, Mr. Grant moved to the Land Registry in Coventry and he did not initially tell his colleagues there that he was gay.

When Mr. Grant attended a work function he became aware that his colleagues had already been informed about his sexual orientation as he was asked by a manager about his partner Chris. Mr. Grant considered this to be unwanted and said that it made him feel uncomfortable. Mr. Grant complained that this comment and various other incidents which happened subsequently amounted to sexual orientation discrimination and harassment and he lodged a claim with the Employment Tribunal. The case was also heard by the Employment Appeal Tribunal and the Court of Appeal.

The Court of Appeal held that the Employment Tribunal was not entitled to find that Mr. Grant had been directly discriminated against or harassed when a manager had mentioned his sexual orientation. It was accepted that the manager did not act with the purpose of undermining Mr. Grant or harassing him. No detriment was found in the disclosure as it was accepted that his former colleagues in the Lytham office could have disclosed his sexual orientation. When assessing whether discrimination had occurred, the Court of Appeal considered it to be highly significant that Mr. Grant had disclosed his sexual orientation in the Lytham office.
http://bit.ly/GUyef4

===========================================
2. The case of Jackson v CNV Ltd ET/2600377/11 is interesting as it looks at a request for an employee to remove from view a catholic prayer necklace.

Ms Jackson worked in a care home based in Bromley and the home was one of three run by CNV Limited. In September/October 2010, Ms Jackson had been discussing menus in an office with her manager Mrs. Lee. Ms Jackson gave evidence that when Mrs. Lee discovered that Ms Jackson was wearing a necklace, she asked Ms Jackson what it was. Ms Jackson said that she replied, “It is my religion. Don’t go there. It was given to me by my mother before she died.” Mrs. Lee then asked Ms Jackson what her religion was to which she replied “catholic” and Mrs. Lee responded, “Tuck it in so it can’t be seen.”

Ms Jackson claimed discrimination on the ground of religion or belief alleging that this request was discriminatory. The Tribunal did not find any act or omission by Mrs. Lee that was capable of amounting to a detriment amounting to discrimination. The Tribunal accepted that due to health and safety, it was common for catering establishments to prohibit employees from wearing jewellery. The Tribunal believed that as Mrs. Lee and Ms Jackson were sitting across the desk from one another and the necklace in question was barely larger than a 2p coin, it was unlikely that Mrs. Lee would have been aware that it had religious connotations.

The Tribunal said that the appropriate hypothetical comparator was someone with the same characteristics as Ms Jackson, but who was wearing a necklace that did not have any religious connotations. The Tribunal believed that the Company would not have treated such a person in a less considerate manner. The Tribunal considered it highly likely that the Company would not have permitted the hypothetical comparator to continue to wear a necklace which had no religious connotations.
http://bit.ly/H6yPIn

===========================================
3. The case of Jain v Teachers 2 Parents Limited (2011) was heard by an Employment Tribunal in Leicester.

The Claimant, Mr. Jain, was of Indian origin and worked in telesales for the Respondent Company. At his induction, along with ten other new colleagues, he was asked to pick an anglicised name for use in his work email address and for him to use when on the phone. The Respondent claimed that this was necessary as in the past, emails had gone astray due to the misspelling of names by customers. Mr. Jain pointed out that he had worked in telesales before and his name had not caused a problem but he did pick the name Rob and did not make a formal complaint at the time.

Some performance issues arose at a later date and a new contract was issued to Mr. Jain. Mr Jain had to ask for the contract to be in his own name rather than Rob. When Mr. Jain was put at risk of redundancy, he raised a formal grievance about the process and the requirement for him to use an anglicised name alleging that it amounted to racial discrimination.

The Tribunal decided that Mr. Jain was required to adopt the anglicised name at work and if there had been a choice in the matter, the Respondent had not advised him of the fact that there was a choice. The Tribunal decided that it was a continuing act as Mr. Jain had to use the name every day at work. The Tribunal found direct discrimination deciding that the Respondent would not have required a colleague of white British origin to adopt a different name and the requirement to do so was on the grounds of Mr. Jain’s ethnic origin. The Tribunal also concluded that a claim of indirect discrimination would have succeeded as the requirement to adopt an anglicised alias was not a proportionate means of achieving the aim of reducing the risk of emails going astray due to the misspelling of names.
http://bit.ly/GRAtgg

===========================================
4. In the recent case of Maistry v BBC (2011) an Employment Tribunal held that the Claimant’s belief that “public service broadcasting has the higher purpose of promoting cultural interchange and social cohesion” was capable of being a philosophical belief falling within the scope of the protection afforded by the religion or belief discrimination legislation.

This case is of interest here as the definition of “religious belief” was expanded by the Fair Employment and Treatment (Amendment) Regulations (Northern Ireland) 2003 to include “any religious or similar philosophical belief” (This issue was considered at a pre-hearing review in a Tribunal in Birmingham.)

The Claimant had been a journalist in South Africa during apartheid and he felt the need for public space so that important issues such as apartheid could be debated. The Claimant argued that the concept of public space and the possibility of enhanced citizenship "had been given cogency, seriousness, cohesion and importance by philosophers such as Jurgen Habermas and John Dewey."

The Claimant relied upon the fact that the BBC, as a publicly funded body, had a mission under its Royal Charter which involved "sustaining citizenship and civil society, promoting education and learning and stimulating creativity and cultural excellence". The BBC had argued that the Claimant’s belief was vague and that the legislation was not intended to cover a belief of this nature as it was just a mission statement which was a goal to aspire to rather than a belief.
http://bit.ly/GQRRYi

===========================================
5. In Basile -v-Royal College of General Practitioners and others, the Claimant is French and he pursued claims of unfair dismissal and both race and sex discrimination following his redundancy.

Two of his colleagues and the College were named as respondents in respect of his allegation that he had been harassed throughout his employment. He alleged that a manager, along with others, had called him “Basil Brush”, “Inspector Clouseau” and “Clouseau” and referred to him as “Basil from Fawlty Towers.” He also alleged that he had been asked in front of colleagues "how's it hanging?" (or variations on this such as "how's the cucumber?" or "how's the banana?").

The Tribunal accepted that the manager had said to Mr Basile “how’s it hanging” and found this, along with other hand gestures which were made to him, to be discriminatory on the grounds of sex. The Tribunal also accepted that Mr. Basile had been called “Inspector Clouseau” and believed that this amounted to harassment on the grounds of race as it created a humiliating environment for him.

The Tribunal determined that Mr. Basile’s complaint about being called “Inspector Clouseau” had been lodged out of time as it had occurred at least five years before the end of his employment and he had not complained whilst he was employed. Mr. Basile argued that the various acts of race and sex discrimination formed part of a single act extending over a period of time but this was rejected by the Tribunal.

However, the Tribunal decided not to reject the complaint of sex discrimination in relation to the “how’s it hanging comment” even though it was out of time. Mr. Basile had complained informally about this but his reason for not making a formal complaint was because of his already strained relationship with his manager. Both the College and the manager were held to be liable for sex discrimination. The Tribunal commented that it did not consider it to be legally possible for unlawful treatment under different statutes (sex and race legislation) to form a single act for these purposes.
http://bit.ly/GTm5Ui

===========================================
Legal-Island would like to thank Alison Collins, Partner, Jones Cassidy Jones Solicitors, for the main content of this email.

Contact: ACollins@jcjsolicitors.co.uk

Telephone No: +44 (0)28 90642290:
Fax No: +44 (0)28 90642297.
Address: 220 Ormeau Road, Belfast, BT7 2FY

===========================================

Legal-Island
27 March 2012

The Belfast Telegraph sponsors Legal-Island's employment law and HR update email services. See the Belfast Telegraph online for all the latest business and employment news:
http://bit.ly/15BLCr

Legal-Island's 2012 Programme of Events is sponsored by Carecall NI. Carecall is a leading provider of employee support services - Counselling, People Management and Development, Conflict Resolution, Change Management, Outplacement and Career Transition Services:
http://bit.ly/r0epY0