The Round Up: Should veganism be protected by the Equality Act?

10 December 2018 by Conor Monighan

Conor Monighan brings us the latest updates in human rights law

Credit: The Guardian

In the News:

This week saw a novel legal challenge which may have significant consequences for the Equality Act 2010. The case arose following the dismissal of Jordi Casamitjana by the League Against Cruel Sports on the grounds of gross misconduct. This was because he released information showing that the pension fund of employees was being invested in firms engaging in animal testing. However, Mr Casamitjana claims he was discriminated against by his former employer because he is vegan.

Mr Casamitjana alleges that he first raised his concerns about the pension investments internally. He says the charity responded by offering staff an alternative ‘ethical’ investment strategy with lower rates of return. Mr Casamitjana subsequently wrote to colleagues saying that their money was still being invested in non-ethical funds, and that there were other alternative investments available with good financial outcomes.

Mr Casamitjana argues that his sacking was due to the charity discriminating against his belief in ‘ethical veganism’. The League strongly deny the allegations and have stated Mr Casamitjana was dismissed purely because of gross misconduct.

The dispute means that an employment tribunal will have to decide whether veganism is a ‘belief’ which should be protected by the Equality Act 2010. It is thought to be the first time this issue has been raised. The ruling could have significant consequences for the provision of goods and services, as well as on employment rights more generally. However, others have warned that recognising too many views as protected characteristics would be excessively restrictive.

In Other News….

• An Advocate General at the CJEU delivered his non-binding opinion that the UK can cancel its withdrawal from the EU. The advice came after a Scottish court referred the matter to the CJEU. Mr Campos Sanchez-Bordona decided that the question was not an academic, hypothetical one, but was of practical importance to the case. Importantly, Mr Campos Sanchez-Bordona said the UK could cancel its withdrawal without the agreement of other EU states. This is partly because Article 68 of the Vienna Convention states notifications of withdrawal from an international treaty may be revoked at any time before they take effect. Unilateral withdrawal was not incompatible with Article 50(2) TFEU, which requires a state to notify the European Council of ‘its intention’ (not decision) to withdraw. However, the Attorney General suggested that Parliament would need to approve such a move. The matter will be ruled on by the CJEU at a later date.
• The government has announced reforms to defamation and privacy cases, which means lawyers will no longer be able to charge a ‘success fee’. David Gauke, the Lord Chancellor, said the changes would come into force from 6 April 2019. However, individuals who bring defamation/ privacy claims on a Conditional Fee Arrangement basis will be able to recover the cost of taking out ‘after the event insurance’. The government has argued the changes implement a 2011 judgment by the ECHR, in which the court found Article 10 had been breached by Naomi Campbell’s lawyers being able to charge the Mirror Group Newspapers 100% of their normal fees. (More from Pinsent Masons here).
• A judge at Newcastle Crown Court lifted an order barring the publication of the name of a man who claimed to be the victim of an VIP paedophile ring. Carl Beech, previously known under the pseudonym ‘Nick’, is due to stand trial for perverting the court of justice and on one count of fraud. His claims included allegations against individuals such as Ted Heath, leading to a £2.5m inquiry by Scotland Yard. (More from the BBC here).
• A Dutch court has ruled that a man cannot change his legal age. Emile Ratelband, 69, describes himself as a ‘positivity trainer’. He sought to reduce his legal age by 20 years to avoid what he described as discrimination. However, the court emphasised that many legal rights are based on a person’s age, making the proposed change problematic. For example, an individual could claim to be older so that they could have the right to vote, drink, drive etc.  The Arnhem court also said allowing the application would undermine the rights of others, such as entitlement to pensions. (More from Time here).

In the Courts:

• CL, R (on the application of) v The Secretary of State for the Home Department: The Claimant is the subject of two crime reports detailing his alleged involvement with sexting. The Claimant sought their deletion, but the High Court rejected his three submissions. The Court held that his right to a fair trial had under Article 6 ECHR had not been breached by the recording of the allegation as a serious sexual offence without the chance to respond. This was because the Claimant was not subject to a criminal investigation, nor accused or charged with any crime. The Court also dismissed the Claimant’s argument that there was a blanket and indiscriminate approach to recording personal details which failed to recognise CL’s status as a minor. It found that there was an intensive system of regulation and guidance, which properly safeguards individuals’ personal data. Finally, the Court found that retaining the crime reports amounted to a proportionate interference with the Claimant’s Article 8 rights. The Defendant had taken into account the fact CL was a minor, the increasing seriousness of the allegations, and had justified his retention of the data.
• The Independent Workers Union of Great Britain, R (On the Application Of) v Central Arbitration Committee : Re: Deliveroo: The Claimant is a trade union seeking to be recognised by the Central Arbitration Committee (“the CAC”). This would have allowed it to bargain collectively with Deliveroo on behalf of a group of delivery drivers in London. The Claimant sought to challenge CAC’s refusal by relying on Article 11 ECHR, which includes a right to bargain collectively. The Court found that Article 11 was not engaged. An employment relationship is for Article 11 to be involved, and one was not present. The definition of ‘workers’ is a matter for domestic law, and has been restricted by s.296 of the Trade Union and Labour Relations Act 1992 to cases in which there is a contractual obligation of “personal performance”. The High Court held this limitation is rationally connected to the objective of preserving freedom of business and contract, and that the interference with Article 11 is of a limited and proportionate nature. Section 296 should not be ‘read down’ in the way contended by the Claimant. Application for judicial review dismissed.
• Alibkhiet v London Borough of Brent v City of Westminster: Under s.208 of the Housing Act 1996, housing authorities must provide homeless people with housing located within the borough (in so far as it is reasonably practicable to do so). The issue in this case was whether it was lawful for the City of Westminster to make offers to accommodate homeless persons outside of its district. The High Court found that the reviewing officer had given adequate reasons for providing such accommodation. Although there was evidence that affordable accommodation did exist locally, the reviewing officer’s letter explained that it could not be offered to Mr Alibkhiet due to the council’s Temporary Accommodation Placement Policy. This would have been clear to a reasonable person in Mr Alibkhiet’s position. The High Court also held that Westminster had discharged its duty under s.208 by inquiring whether suitable accommodation was available at the time at which it made its offer.

On the UKHRB

• In latest episode of Law Pod UK “Psychiatric harm and childbirth”  Emma-Louise Fenelon talks with Suzanne Lambert about YAH v Medway NHS Foundation Trust. For more details and all the references from that episode see our UKHRB post.

Events:

• Rethinking Human Rights: a southern response to western critics, 10^th December, the LSE. More here.
• Stand Up for Human Rights: 70 years of the Universal Declaration of Human Rights, 10^th December, the Regent’s University London. More here.
• Routes to an English Parliament?, January 11^th, The Centre for English Identity and Politics. More here.

If you would like your event to be mentioned on the Blog, please email the Blog’s Commissioning Editor at jonathan.metzer@1cor.com