Mandating belief in an unsupported empirical claim under UK employment law Is the following scenario proscribed by UK law: An employer mandates that all employees complete an online learning activity. This includes an educational document followed by a multiple choice quiz with a mandatory 7/10 pass rate. For one of the questions, the acceptable answer implies an empirical claim. For example, &quot;What is a benefit of having employee demographics that more closely resemble the demographics of wider society?&quot; and the acceptable answer (among five choices) being &quot;We can provide better customer service&quot; (the empirical claim implied here is: businesses whose employee demographics more closely resemble wider society provide a better customer service). They provide no evidence to support this claim, in the educational document or elsewhere, either through their own research or with reference to published studies. An employee refuses to complete the quiz after requesting evidence for the aforementioned claim and being given none. The employee says they do not believe the claim to be true without evidence, that therefore they cannot provide the acceptable answer in good faith, and hence that this means they effectively have a 7/9 pass rate (if, say, they omit the problematic question). The employer pursues disciplinary action against the employee. In particular, can the employee in the above scenario claim to be the victim of discrimination? Does this come down to whether agreeing or not with an empirical claim without evidence constitutes &quot;philosophical belief&quot; under the Equality Act 2010?
Almost certainly not. The closest case I can think of is Conisbee v Crossley Farms in which is was decided that vegetarian was not capable of satisfying the requirements and definition of being a philosophical belief as protected under the Equality Act. It would seem that the belief that &quot;businesses that hire more consultants achieve better performance&quot; is a much weaker belief than vegetarian, and so would be expected to not be given such protection.
Its difficult to tell without seeing the exact paperwork, and the exact meaning of without prejudice varies by jurisdiction (I think UK is the same as here in NZ though). If an agreement is reached through communications marked "without prejudice" it should be valid in court to the extent that it shows an agreement was reached and what the agreement was (but the court will not generally look at the documents marked without prejudice for other reasons &ndash; e.g. admissions made &ndash; if no agreement is reached). There are a couple of other relevant things to mention &ndash; although not strictly part of your question: Lawyers are officers of the court, and have duties to the court, which include acting ethically. So, provided it's a reputable law firm, it is reasonable to (somewhat) trust their solicitors in procedural matters. My understanding is that courts encourage anything that will help settle a matter out of court &ndash; hence the whole idea of "without prejudice" letters being valid. I believe that the court will uphold an agreement reached through communication of without prejudice emails as it's in their interests. If you have these kinds of concerns, you can raise them with their solicitor, suggesting that you would prefer the final document to not be without prejudice, even if it only refers to the matter and agreement, without sensitive stuff. I imagine they would be only to happy to oblige, as they can bill their client for another letter!
Are all interview questions that don't apply to essential functions illegal? No. Not all such questions are illegal, but see one exception from California legislation as pointed out by @GeorgeWhite and others in section 432.7 of the state Labor Code. Other jurisdictions very likely have equivalent prohibitions, but questions like the one you envisioned ("What music do you like") would not infringe statutory provisions. Generally speaking, it is lawful for an employer to assess candidates' personality &amp; non-essential skills under casual and not-so-casual scenarios through the use of questions with no relevance to the job at issue. Only in very specific circumstances certain pattern(s) of questions may lead to a finding of harassment or discrimination. Questions related to categories which the Civil Rights Act protects are risky because a rejected candidate would have at least some grounds for a claim of discrimination. Those categories are [candidate's] race, color, religion, sex, and national origin. Questions on those protected categories are not illegal, but the employer will have the burden of proving that its challenged practice (i.e., making seemingly discriminatory questions) "is job related for the position in question and consistent with business necessity" (see 42 USC § 2000e-2(k)(1)(A)(ii)) rather than for purposes of unlawful discrimination.
Is this legal? Yes Or does it mean that employee will be in breach of his/her contract? Yes You are assuming that if the evidence is allowed to be presented then that automatically means that keeping it for that purpose is not a breach of the contract. This is not necessarily so; it can be both at the same time. That said, it is unlikely that an employer would attempt to sanction an employee for this as the courts would (rightly) see it as an attempt to pervert the course of justice. As in most things in the law it is possible for all parties in a matter to be on the wrong side of it. If you want to come to the tribunal with "clean hands" then the best thing to do is make a record (not a copy) of the relevant documents and return then to the employer. Before going to the tribunal get your solicitor to subpoena the documents that you want - they will have to produce them and you have them without breaking your contract.
In the US, prohibitions against sex discrimination in employment do not include an exception when males are the targets of a discriminatory practice, whatever the underslying rationale may be. The specific language of 42 USC 2000e-2 is It shall be an unlawful employment practice for an employer— (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin Although sex discrimination lawsuits are infrequent when the victim is male, extending a beneficial condition of employment to females only would be as illegal as extending a beneficial condition of employment to whites only.
I, semi-contrarily, speculate that the answer is "yes", as long as we understand your question to be about religion, since that is what is legally relevant in terms of discrimination law. The EEOC "answers" the question in 29 CFR 1605.1, saying In most cases whether or not a practice or belief is religious is not at issue. However, in those cases in which the issue does exist, the Commission will define religious practices to include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views. This standard was developed in United States v. Seeger, 380 U.S. 163 (1965) and Welsh v. United States, 398 U.S. 333 (1970). The Commission has consistently applied this standard in its decisions. The fact that no religious group espouses such beliefs or the fact that the religious group to which the individual professes to belong may not accept such belief will not determine whether the belief is a religious belief of the employee or prospective employee. The phrase “religious practice” as used in these Guidelines includes both religious observances and practices, as stated in section 701(j), 42 U.S.C. 2000e(j). The question then is what the court said in those cases that could possibly be construed as a definition of "religion". The case of Seeger, which pertains to conscientious objector status and the draft, held the following relevant points: The test of religious belief within the meaning of the exemption in §6(j) is whether it is a sincere and meaningful belief occupying in the life of its possessor a place parallel to that filled by the God of those admittedly qualified for the exemption. Observe that the court does not generally define religion here, rather, it strives to interpret a clause in the Universal Military Training and Service Act, 50 U.S.C.App. § 456(j), which denies that there is a requirement to serve in the military on any person "who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form". The statutes more specifically says: As used in this subsection, the term "religious training and belief" does not include essentially political, sociological, or philosophical views, or a merely personal moral code. Congress, then, also did not attempt to define "religion", rather it used that term to refer to certain undefined beliefs (it them becomes the court's job to define the term, relative to the act). Seeger also holds that Local boards and courts are to decide whether the objector's beliefs are sincerely held and whether they are, in his own scheme of things, religious; they are not to require proof of the religious doctrines, nor are they to reject beliefs because they are not comprehensible. This means that, w.r.t. the draft and the religious exemption, the basis for deciding is whether the beliefs are sincere, and whether they are in the subjects "scheme of thing" religious. I also bold the clause about not requiring proof of doctrine, since that will be an issue below. In Welsh it was held that: Section 6(j) contravenes the Establishment Clause of the First Amendment by exempting those whose conscientious objection claims are founded on a theistic belief, while not exempting those whose claims are based on a secular belief. To comport with that clause, an exemption must be "neutral" and include those whose belief emanates from a purely moral, ethical, or philosophical source. The significance of this is that the conscientious objector clause flouts the Establishment Clause by specifically giving preferential treatment to beliefs founded on a theistic belief, but not a non-theistic belief. Thus, to be consistent with the Establishment Clause, the term "religious" must be interpreted in a way that does not favor theistic vs. non-theistic beliefs. In both cases, defendants were raised religiously but were not members of a church with an officially pacifist doctrine. Quoting Welsh, the defendants neither could definitely affirm or deny that he believed in a "Supreme Being," both stating that they preferred to leave the question open. Both defendants affirmed on those applications that they held deep conscientious scruples against taking part in wars where people were killed. Both strongly believed that killing in war was wrong, unethical, and immoral, and their consciences forbade them to take part in such an evil practice. Thus, "firm belief" is the interpretation of "religious belief" w.r.t. the draft, and is relied on by the EEOC in their definition of religion. The question of whether white supremacism could be deemed a religion, w.r.t. discrimination laws, came up (and was basically avoided) in Swartentruber v. Gunite. The issue there was that the complainant had Klan tatoos, and his employer told him to cover them up. He sued the company (Gunite) for religious discrimination, to no avail. As the court summarized, he would have to show that (1) he has a sincere religious belief, observance or practice that conflicts with an employment requirement; (2) he informed his employer of the conflict; and (3) the religious practice was the basis for the adverse employment decision. His case failed for a number of reasons, but the crux of his argument was that the "Firey Cross" tattooed on his arm is one of that church's seven sacred symbols (he reports that he is "a member of the Church of the American Knights of the Ku Klux Klan, a religious organization"). However, Mr. Swartzentruber does not present admissible evidence, or even contend without evidence, that being required to cover up his tattoo at work conflicts with his religious beliefs This appears to be at odds with Seeger above, because one is not required to prove that ones religion has a particular doctrine. Since Swartentruber represented himself, this could well mean nothing more than that he failed to make an appropriate assertion about his firmly held beliefs (since one is not required to show that their church has a specific doctrine). The basic reason why Swartzentruber's case failed was, simply, that his employer did in fact offer him a reasonable accommodation. Firing a person, on the other hand, is not a reasonable accommodation. Following the logic of Welsh and Seeger and being mindful of the Establishment Clause, one might well expect that an ideological firing would be a violation of the religious discrimination part of the Civil Rights Act. The belief in question would have to be firmly held, but need not be theistic. Since the matter has not been decided by SCOTUS, we cannot know how they would rule if the matter came before them. There is, at least, a clear precedential path where white supremacism could be held to be a religion. In addition, if the incident took place in Seattle, the firing would be illegal because city ordinances prohibit discrimination based on political ideology.
Raise the question with your employer If you believe that you are an employee and not a contractor then there is presumably something you want from your employer. This may be additional wages and entitlements that you would have or will become entitled to for past or future work respectively. Or you may have been injured and want workers' compensation. Or terminated and you want redundancy pay. Whatever it is, work it out and raise the issue with your employer. You might want to consult an accountant or union to help you. They may acknowledge that you were incorrectly classified and give you what you want. Winner, winner, chicken dinner! Or they may dispute it. If so, you need to follow the dispute resolution processes at your workplace. These typically involve informal discussions, escalating to mediation and then to a workplace tribunal run by the government. You will almost certainly want to consult a lawyer or union to help you - given that you don't know where to start the learning curve is likely to be too steep. In virtually every jurisdiction if people are employees at law they can't choose not to be. in british-columbia the relevant law appears to be the Employment Standards Act although it's not unheard of in edge cases for a person to be an employee under one law (e.g. workers' compensation) and a contractor under another (e.g. income tax). From the linked site: The overriding question is “whose business is it?” Is the person who is doing the work doing it as a person in business for themselves? If you are working "for" your own business you are probably a contractor. If you are working "for" your employer's business you are probably an employee. For example, if you are an accountant with several dozen clients, maintain your own business premises and charge for your advice based on the amount quoted rather than by the hour, you're a contractor. If instead, you have 2 clients, work from their premises at set hours and get paid by the day or week, you're an employee with 2 jobs. In edge cases these are not cut and dried - Google are Uber driver's employees. In Australia: no. In California: yes. In the UK: yes.
In the US, there have been a few cases (EEOC v. The Children's Home, Inc., Michael W. Naylor v. City of Burbank) in the realm of employment discrimination. There may well be more cases which are settled without going to court. There are somewhat more court cases in the UK, see here for a number of relevant categories. In addition, there are significant cases regarding discrimination against gay males, for example Bostock v. Clayton Co, decided by SCOTUS this summer.