Employment Edit: 7 March 2024

Belief discrimination

Terminating the contract of a Christian actress after a Facebook post expressing her beliefs relating to homosexuality came to light was not discriminatory, according to the EAT.

The claimant was set to play a lesbian role in a production of ‘The Colour Purple’. After the claimant’s casting was announced, a social media storm developed regarding a previous Facebook post made by the claimant in which she stated her religious beliefs in relation to homosexuality. In response to the publicity storm, the claimant’s contracts with the theatre and her agency were terminated. She issued a claim alleging, amongst other things, direct discrimination on the ground of religion or belief.

The tribunal found that the theatre terminated the contract because of the effect of the adverse publicity on the cohesion of the cast, audience reception, the producers’ reputation and the standing and commercial successful of the production. The agency’s reason for terminating the contract was its fear that the publicity storm threatened the agency’s survival. The tribunal concluded that neither the claimant’s belief nor manifestation of her belief were the operative reason for the decisions taken and that the real reasons were separable from any such belief and/or any manifestation of it. The EAT upheld these conclusions, noting that the tribunal had carried out a detailed evaluation of the evidence.

Belief discrimination cases continue to dominate the appeal courts, and an important Court of Appeal hearing is scheduled for October this year in the Higgs v Farmor’s School litigation. It is a fast-moving and complex area of law, so make sure you take appropriate advice if you are faced with a situation involving beliefs in the workplace.

(Omooba v Michael Garrett Associates Ltd and another)

Menopause guidance

The Equality and Human Rights Commission (EHRC) has issued new guidance for employers on menopause in the workplace. The guidance, which can be found here, aims to help employers understand their legal obligations when they have workers who are experiencing menopausal symptoms.

The guidance confirms, in line with case law in this area, that menopausal symptoms can be amount to a disability if the usual definition under the Equality Act 2010 – a mental or physical impairment that has a substantial and long-term adverse effect on the worker’s ability to carry out normal day-to-day activities – is met. The guidance is accompanied by explainer videos, covering employers’ legal obligations, examples of workplace adjustments and practical advice on having conversations about the menopause.

In this blog post, Eilidh Wood takes a closer look at the guidance and considers what employers can do to create a menopause-friendly workplace.

Carer’s leave

The Carer’s Leave Regulations 2024 have now been passed, which means that the new right to carer’s leave will come into force as anticipated on 6 April 2024. From that date, any employee who has a dependant with long-term care needs will be entitled to up to one week’s unpaid carer’s leave in any twelve-month period.

Leave can be taken in one continuous block or on separate days but a minimum of a half a day must be taken at a time. There are certain notification requirements that an employee must follow when informing their employer of the dates on which they intend to take their leave and limited circumstances in which an employer can postpone the leave requested. The employer cannot require the employee to supply evidence in relation to a request for carer’s leave.

Employers should now prepare for the new right, including considering the implementation of a carer’s leave policy and checking that payroll and time & attendance systems are ready for the new type of leave. If we can help you prepare for this new right, please do get in touch with your usual Burges Salmon contact.

Immigration salary list

The Migration Advisory Committee (MAC) has published its recommendations for the new ‘Immigration Salary List’, which is set to replace the current ‘Shortage Occupations List’. These lists set out occupations where employers face a shortage of suitable labour and accordingly where certain reduced salary thresholds apply for immigration permission purposes.

The proposed Immigration Salary List includes significantly fewer roles than the existing Shortage Occupations List (21 compared to the current 37), meaning that, if it is adopted by the government, significantly fewer roles would qualify for a reduction to the general salary threshold for sponsorship under the Skilled Worker route. Given that the general salary threshold is due to increase markedly on 4 April 2024 to £38,700 (up from £26,200), the result would be a more restricted pool of roles which are eligible for sponsorship. For the majority of roles on the ISL, a reduced general salary threshold of £30,960 is listed – this reduced rate could be relied on in certain circumstances, depending on the going rate for the role.

Sponsoring employers will need to keep a close eye on developments – we will keep you posted on key updates in future Employment Edits.