Credit Management December 2022

HR MATTERS
Changing Tack
Post-Brexit changes to employment law, new
guidance on staff suspensions, and confirmation that
support of a football club is not a protected belief.
AUTHOR – Gareth Edwards
AN employment tribunal
held that support for
a football club is not a
protected philosophical
belief under the Equality
Act 2010.
In the case of McClung v Doosan Babcock
Ltd and others ETS/4110538/2019, the
claimant, Mr McClung, is a staunch
and lifelong supporter of Glasgow
Rangers Football Club. He describes his
support of the club as a way of life and
as important to him as attending church
would be to a Christian.
McClung worked as subcontractor for
Doosan Babcock, and claimed a manager
there denied him further work because
she was a Celtic fan. He brought claims
for unfair dismissal and discrimination.
There were a number of issues to
determine in relation to McClung's
claims, including his employment
status. The case concerns the question of
whether McClung's support of Rangers
qualified as a protected belief under
section 10 of the Act.
The tribunal held that his belief,
whilst strong and genuinely held, was
not a protected belief under the Act. It
considered the five Grainger criteria for
determining whether a belief qualifies
for protection under the Act, namely
that the belief must be genuinely held;
it must be a belief and not an opinion or
viewpoint based on the present state of
information available; it must be a belief
as to a weighty and substantial aspect
of human life and behaviour; it must
attain a certain level of cogency,
seriousness, cohesion and importance;
it must be worthy of respect in a
democratic society, not be incompatible
with human dignity and not conflict
with the fundamental rights of others.
The tribunal accepted that the belief
was genuinely held. However, the
remaining criteria were not met. Further,
an explanatory note to the Act stated that
support for a football club would not be
a protected belief. There is a difference
between a belief, which is the acceptance
of something a person believes to be true,
and support, which is being interested
in and concerned for the success
of something.
In addition, the tribunal held that
supporting a football team was not
equivalent to a belief in something
weighty and substantial; support for
Rangers does not invoke the same
respect in a democratic society as issues
such as ethical veganism.
This case distinguishes between the
concept of support and the concept
of belief.
Acas issues new guidance on suspensions
ACAS has published employer guidance on
how to manage staff suspensions during formal
disciplinary and grievance investigations.
The new guidance, Suspension during an
investigation at work, covers a number of key
issues, including deciding whether to suspend
an employee, how they should be suspended,
how to support their mental well-being, and
dealing with pay and holiday during the
suspension period.
The guidance reflects the fact that suspension
should not be an automatic response to
concerns or allegations being raised. However,
in some circumstances suspension might be
appropriate, for example, in order to preserve
the integrity of an investigation, and where there
are no viable alternatives to suspension which
would achieve the same result. The guidance
sets out ways employers can approach the topic
of suspension fairly and sensitively, so that it
can be properly seen as a temporary and neutral
act, and so that the individual's wellbeing can be
properly protected.
The guidance acknowledges that in some
situations it might be appropriate to take legal
advice before suspending an employee, for
example, if there is any question over pay or
the fairness of the suspension. It is also good
practice to put everything in writing, so the
terms of suspension are clear from the outset.
Suspension should be no longer than necessary
and the decision to suspend should be kept
under review.
Shake-up of employment rights expected
THE Government has introduced the
Retained EU Law (Revocation and Reform)
Bill 2022-2023 to the House of Commons.
The bill could prompt a significant shakeup
of established employment rights.
Broadly speaking, the bill is intended to
confer more power on the Government to
operate free of the constraints of retained
EU law that derives from the European
❝
The guidance sets
out ways employers
can approach the
topic of suspension
fairly and sensitively,
so that it can be
properly seen as
a temporary and
neutral act.
❝
Union, which was retained within UK
domestic law following Brexit. Under the
Bill, EU-derived subordinate legislation
and retained EU legislation will be
revoked across the UK at the end of 2023.
Much of UK employment law derives
from EU law, including TUPE and the
Working Time Regulations (which contain
holiday rights and set out the parameters
of the working week). The Government is
yet to comment on what specific pieces
of legislation it might seek to remove or
retain if the Bill is passed.
Gareth Edwards is a partner in the
employment team at VWV.
Brave | Curious | Resilient / www.cicm.com / December 2022 / PAGE 59