Briefing Notes w/e 7 December 2018

by John Wood | December 7th, 2018

Collective Bargaining

In a judgment delivered earlier this week, the High Court has determined the right to collective bargaining did not apply to Deliveroo riders as there was no obligation on them to undertake the work personally. 

The case had originally been considered by the Central Arbitration Committee who considered an application by the Independent Workers’ Union of Great Britain to be recognised for the purposes of s.296 of the Trade Union and Labour Relations (Consolidation) Act 1992.  After a four day hearing the CAC rejected that application which was then challenged in the High Court. 

In reaching its decision, the High Court determined that the European case law focussed on rights within an employment relationship. However, in the case of the Deliveroo riders, they could substitute the performance of their duties and therefore there was no obligation of personal service.  The Court also decided that even if Article 11 of the European Convention on Human Rights had been engaged, which includes the right to join a trade union, the restriction on those providing personal service was a proportionate restriction given the objective of preserving freedom of business and contract.  The IWUGB has indicated that they intend on appealing the decision but it is an interesting decision balancing competing human rights, particularly given the number of recent cases which have afforded rights to those employed within the current “gig culture”.  

Is veganism a protected characteristic?

There has been a great deal of news coverage this week on the case of Mr Casamitijana who is reported as bringing a claim of unfair dismissal against his former employer, the League Against Cruel Sports.  They have stated that he was dismissed for gross misconduct but we understand that Mr Casamitijana is arguing that his dismissal was due to his vegan beliefs, which he says should be protected under the Equality Act 2010.  That was after he highlighted that some of the organisation’s pension fund investments were held in companies that tested on animals. 

Under section 10 of the Equality Act 2010, a belief includes “any religious or philosophical belief and a reference to belief includes a reference to a lack of belief”.  Following the case of Nicholson, where it was held that a belief in climate change could potentially amount to a philosophical belief for the purposes of the legislation, the EAT gave guidance that to engage the protection under the act a “belief” must be:

  • genuinely held;
  • be a true belief, rather than an opinion or viewpoint;
  • must be a weighty and substantial aspect of human life and behaviour
  • must attain a certain level of cogency, seriousness, cohesion and important;
  • need not be shared by others;
  • must have a similar status or cogency to a religious belief. 

The case is due to be heard in March 2019, but even if the Tribunal conclude that veganism is protected under the Act it will still have to consider whether Mr Casamitijana’s dismissal was because of those beliefs or, as is argued, because of his conduct.  Nonetheless, the case clearly raises some interesting public policy issues as to how far the definition of “philosophical beliefs” should extend and we’ll report back as soon as we have more information.