A Parliamentary report into racial discrimination by the Women and Equalities Committee highlights some hidden discrimination suffered by Muslim people. They face the highest level of unemployment of all religious and ethnic groups, 12.8% are out of work compared to 5.4% for the general population in the UK.
Several reasons have been put forward for these statistics. They include discrimination, islamophobia, stereotyping and pressure from traditional families. However, several possible solutions do exist to these issues, and we examine some of these below, together with pros and cons.
MPs have proposed name-blind recruitment as “part of the solution” to the biases. Mr Smith is more likely to be called to interview than Mr Khan. However, this will only work at the primary stage of recruitment, after which blind applications will not resolve the bias that comes in face-to-face interviews.
Another proposition that has been suggested is quotas for Muslim applicants for vacancies. However, this could be perceived to do more harm than good, in a situation where, for example, a perfectly qualified candidate is rejected in favour of a Muslim candidate from a quota list.
Employers should make a conscious effort to increase their employees’ understanding racial discrimination and stereotypes. This could be achieved through courses to enhance cultural awareness and understanding.
The government needs to take action to ensure employees are empowered to challenge racial discrimination. This could include a media campaign to highlight situations where employees fear challenging discrimination, in case they lose their job if they speak out.
A nominated individual in the interview who is well-trained in recognising any stereotyping or discrimination. This person could be responsible for giving training courses to employers to enhance awareness of discrimination issues. They would be involved in the decision-making process, although this would have a significant bearing on recruitment costs.
Note for those wishing to improve diversity
Employers may be allowed to favour Muslims in one specific situation. Where candidates with a particular protected characteristic (such as Muslim religion, Asian race or females) are disadvantaged (such as in recruitment) a recruiter is allowed to treat a person with that characteristic more favourably than another as long as the person with the relevant characteristic is “as qualified as” those others (s159 EqA 2010).
I.e. you are allowed to discriminate favourably to balance your workforce as long as you don’t disadvantage someone who is better-suited to the job.
This is called ‘positive action’ and has only been legal in recruitment since 2011.
By Raheena Jamila Khan
Image courtesy of Fahrurrazy Halil and licensed under CCRead More
Note: there is an update here.
Uber is facing legal action in the form of tribunal claims in the UK from the GMB workers union on behalf of Uber’s drivers as they argue that the taxi booking-firm does not maintain their working rights.
Uber uses drivers on a self-employment basis but the line between self-employed contractor and employee is not easy to draw. ‘Edge cases’ have been stumping employment solicitors and employment tribunals for years. Calling drivers self-employed simplifies many areas of employment law for an employer.
However there is a grey area in between self-employed and employee called ‘worker’, to whom some employment law rights do attach, although the full complement of employment laws don’t apply.
The union is alleging Uber are:
- Not ensuring drivers are receiving the minimum wage
- Failing to ensure drivers are paid holiday pay; and
- Not monitoring that drivers get appropriate rest breaks
Uber currently pays its drivers through transferring a percentage of what passengers pay to the driver. The national minimum wage for people over 25 is effectively set at £7.20 per hour.
Almost every worker has a legal right to take 5.6 weeks paid holidays. This is calculated by multiplying the amount that you make in a week by 5.6 weeks, which for an employee working five days per week is 28 days including bank holidays.
The rules on working time and rest breaks are complicated but a worker is entitled to a 20 minute break after 6 hours, 24 hours of rest every week and 11 hours of rest every day. The purpose of these rules is primarily health and safety, which is an appealing argument to employment tribunals in finding for claimants.
The risk Uber faces is that breaching employment rights can result in claims for damages from the claimant drivers in their employment tribunal claims. However Uber also faces potential damage to its reputation as a serious player in the economy.
Some important caselaw from the Employment Appeal Tribunal has arrived in 2016, with important implications for how settlement agreements work (you may want to see our article on settlement agreements for an explanation of this term).
This case is a good springboard to examine the ‘without prejudice’ rule and look at s111A of the Employment Rights Act 1996 on protected conversations.
Be warned! This article discusses intricate details of what you are and are not allowed to tell a judge about “fireside chat” conversations that can lead to an employee resigning because they no longer feel welcome at a company.
“Fireside chat” is not a term used by employment solicitors. We use the phrase “settlement discussion” to refer to discussions, emails and documents where an employer puts to an employee the suggestion that they part company amicably and agree a price and other terms (confidentiality, a reference etc) for doing so.
Suggesting this to an employee can sever the employment relationship, because it effectively says “we don’t want you here any more”. This is constructive dismissal, if the employee resigns.
Before David Cameron and the coalition government took office, there was (and still is) a helpful piece of law to employers in the form of the ‘without prejudice’ rule. This rule allows a party to proceedings (not just employment tribunal cases) to keep from the judge’s eyes any communication aimed at reaching an amicable settlement of a dispute.
Once the chain of communication benefits from the ‘without prejudice’ rule, the employer can rest safe in the knowledge that the employee can’t bring an employment tribunal case because he wouldn’t have the smoking gun (the communication) as evidence.
So an employer would create a phoney dispute and then put the suggestion. It could start a disciplinary process and wait for the employee to reject the allegations by defending himself. Then start a ‘fireside chat’, with the ‘carrot and stick’ approach. Either the employee takes the carrot of the settlement agreement or faces the disciplinary stick. Depending on the amount offered, most employees take the carrot.
But this approach has problems. What if the employee plays the ‘contrite apology’ card? What if the employee defends himself but accepts that the employer was within its rights to start the process? There would be no dispute and the offer is not ‘without prejudice’. Employers could leave themselves vulnerable when they only wanted to see what price the employee would accept in order to go. They don’t see why just asking the question should effectively increase the price.
The big 2013 change – s111A
The change brought in by David Cameron was to allow employers to ask an employee if they would depart in return for a sum of money, when there was no dispute, without the employee being able to tell a judge about it in an unfair dismissal case.
The change is enshrined in s111A Employment Rights Act and uses the term ‘protected conversation’.
The 2016 case – Faithorn Farrell Timms LLP v Bailey
What does this case say?
It’s about the details. Until now, lots of questions have been unclear.
- Does s111A protection mean that an employee facing a carrot/stick disciplinary can string out a settlement discussion then resign because the disciplinary took too long?
After all, s111A prevents the judge being told about the existence of the carrot but not the existence of the stick. Maybe a judge can say that s111A only protects a genuine negotiation and that a dragged-out process is not a genuine negotiation.
- Can the parties agree to tell the judge about the settlement discussions? That is, can they waive the benefit of the s111A rule?
Sometimes both sides think it will help their case if the judge knows what was discussed at a meeting. Eg if a manager said “you’re a good performer, but you can’t work with others”, the employee may want to tell the judge about the first part and the employer may want to use the second .
- For that matter, there is a long history of parties waiving the protection of ‘without prejudice’ protection by accidentally referring to negotiations in letters and litigation documents. Can that happen with s111A?
- Does s111A stop a judge being told that a protected conversation took place or (as with the without prejudice rule) does it just stop the judge being told what was discussed in it?
- In what circumstances does an employer lose the benefit of the s111A protection?
For example if he gives a choice between signing a settlement agreement or a punch in the face, surely the law shouldn’t stop the employee resigning and referring to the Hobson’s choice? What about non-violent conduct, eg wanting to part company with an employee because of his skin colour?
The protection of the ‘without prejudice’ rule is lost where there is unambiguous impropriety”. The protection of s111 is lost where there is “improper behaviour”. So do these two terms mean the same thing?
- What if the employer has no intention of negotiating a departure but is just using the rule to be nasty to the employee? Should the employer be allowed to get away with that?
- Does s111A protection protect internal employer discussions or only discussions with the employee?
- For both types of protection, where is the line between negotiations (which are protected both under s111A and the ‘without prejudice’ rule) and stating your legal position (not protected by either rule)?
Typically, in a ‘fireside chat’ letter the employer may write something like this: “You have messed up six times and cost us a lot of money. Two clients refuse to work with you. In our fireside chat conversation you admitted setting fire accidentally to the kitchen. We want to offer you £10,000 to leave.”
It would suit the employer nicely to have everything except the last line before the judge. It would suit the employee to have only the last line before the judge. A compromise would be to keep the whole document from the judge. Are the allegations in this example a background part of the negotiation or separate from it? If background, then they get the protection of s111A and the without prejudice rule. If separate, they don’t.
So, those were the burning questions! This case answered them like this
- No, a party is not allowed to mislead the tribunal. If they claim wrongly that they resigned constructively because a disciplinary process was strung out, the employer is allowed to point to the fact that a settlement discussion was happening to overcome the constructive dismissal claim. This will not open the gate for the employee to rely on the settlement discussion for his constructive dismissal claim; he would now be shown to have tried to mislead the tribunal and probably would lose their credibility and the case with it.
- No, the parties can’t agree to dispense with s111A and tell the tribunal about the settlement talks. This is because the Employment Rights Act says that parties may not contract out of any statutory protections in the Act.
- As parties can’t waive s111A protection deliberately, they certainly can’t do it by accident. In this case, the employer made a mistake and accidentally waived the ‘without prejudice’ protection by referring to settlement discussions in its response to the employment tribunal claim. This didn’t matter to the unfair dismissal claim, which is also covered by s111A, but it still mattered to the discrimination part of the claim.
- s111A stops a judge being told that a protected conversation even took place, not just what was discussed or how much was offered. The ‘without prejudice’ rule only stops the parties telling the judge what was discussed, not that a discussion took place.
- An employer may lose the benefit of the s111A protection if there is “improper behaviour” and may lose the benefit of ‘without prejudice’ protection if there is “unambiguous impropriety”. The case says that lies, violence and “blatant discrimination” will probably be both.
Conduct that is not serious enough to be “unambiguous impropriety” may still be “improper behaviour”. There are no examples of this yet. But it makes it easier for the protection under s.111A to be lifted compared to “without prejudice” privilege.
- If an employer has no intention of negotiating a departure but is just using the rule to be nasty to the employee then this case says that s111A would no longer apply. So that matches the situation with the ‘without prejudice’ rule. But good luck to any employee who tries to prove that – it would be hard!
- Does s111A protection protect internal employer discussions? Yes. Just like the ‘without prejudice’ rule. So managers can discuss the situation with HR without fear that an employee will be able to show their emails to a judge at a later date.
- Where is the line between negotiations and stating your legal position? Unhelpfully, the case says it’s a decision for the judge on the day. But this has always been the case for the ‘without prejudice’ rule anyway so it wasn’t a surprise to employment solicitors. We think that letters containing the usual “background, carrot and stick” will usually be held to be completely covered by s111A.
Case report: Faithorn Farrell Timms LLP v Bailey
By Gareth Davies, with additional reporting by Jeffrey YipRead More
A recent case has held that employers will not get into trouble with employment law if they don’t follow the Acas Code of Practice on Disciplinary and Grievance Procedures.
Mr Holmes was a security guard who was dismissed after eight years on the grounds of his ill health. He had long-term pain in pain his back, legs and hips. The employer had to accept that the dismissal was unfair – presumably acting without the assistance of employment solicitors, it hadn’t obtained a recent occupational health report. So this case was all about the amount of compensation Mr Holmes should get.
We have an article about maximising compensation in tribunal claims.
One of the parts to an unfair dismissal compensation claim is the employment law rule that if either party unreasonably fails to follow the Code of Practice, the compensation can be increased or reduced by up to a quarter. This encourages employers and employees to do everything possible to ensure a fair dismissal or avoid one entirely. For example, it provides for proper investigations, warnings and an appeal process.
The employee complained that the employer had failed to observe the employment law rule enshrined in the Code that a proper investigation should take place into the illness. To be clear, this mistake had already made the dismissal unfair. After all, Mr Holmes had had an operation that cured the pain and he shouldn’t have been dismissed. The question in employment law was whether the compensation should be increased by up to 25% or not.
The Code is called the Code on Disciplinary and Grievance Procedures. Are absence dismissals a disciplinary procedure?
The Code itself says:
- “This Code is designed to help employers, employees and their representatives deal with disciplinary and grievance situations.
- Disciplinary situations include misconduct and/or poor performance.
- This Code does not apply to redundancy dismissals or the non-renewal of fixed term contracts on their expiry.”
Absence is not in the list of things that are included and not in the list of things that are excluded. It is surprising that the matter hasn’t come up in the employment tribunals before now.
The EAT (employment appeal tribunal) decided that the Code did not apply because illness is not misconduct or poor performance. There is nothing “culpable” about being ill. Although illness can be cured, it is through the work of doctors, not the work of the employee.
Until this case employment solicitors had advised that the Code should be followed just in case. Now, there is one fewer thing to trip up HR professionals.
Case report: Holmes v QinetiQRead More
Just recently, the burger chain Byron Burger was thrust into the limelight after it came to light that it was employing a large number of employees without the right to work in the UK. This is contrary to UK employment law. 35 employees have been interviewed and 25 of them deported. The company received criticism for working with the Home Office to set up a fake training day so that Border Agency staff could more easily round up its workers. Byron management have not responded to that particular allegation. They have stated that they were cooperating fully with the Home Office in its investigation.
As a result, Byron Burger have received a lot of online criticism by staff, even those who admitted working illegally. One employee said “They used us and threw us away”. Reprisals have included having live insects released into two of its restaurants.
The questions that arise as a result of this is whether Byron Burger was right to set the trap and what repercussions could it have for right to work.
Were they right or wrong?
The first thing to clear up is that there is no suggestion that Byron Burger breached employment law by employing them knowingly or recklessly. An employer who is duped by false ID documents will face no penalty, if it made the required checks. Nor did it act outside employment law by working with the Home Office. Byron was entitled to co-operate with the government in this way. It was underhand but this is not itself unlawful. By co-operating they may have assisted the brand by showing honesty. Nevertheless, there was no legal reason for Byron burger to have set up the trap. It would have potentially led to less controversy if the company had chosen to cooperate with the Home Office by carrying out further independent checks into the employees flagged up to confirm or dismiss the suspicions.
What could we see going forward?
As a result of this case’s publicity we might begin to see employers adopting more rigorous methods to avoid counterfeit documents making it through the right-to-work screening process. We could also potentially see employers actually complying with their employment law obligations to carrying out checks at the required intervals during the course of employment to ensure that employees still have their legal right to work.Read More
Currently employers can recruit staff from the EU countries (Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech, Denmark, Estonia, Finland,
France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden) with no problems. EU nationals still have the right of free movement to live and work in the UK. So do those from the European Economic Area (Iceland, Liechtenstein, Norway) and Switzerland.
However, nobody knows (see our other article for some shameless speculation) what will happen to this area of employment law after Brexit – this is part of the exit negotiations. Commentators think it is likely that Britain will have to continue to accept foreign workers in return for not paying import duties on goods sold to the EU. No doubt there will be tweaks, but these are up in the air for now. Farmers who rely on Poles and Lithuanians wait anxiously. We have employer clients who rely on Eastern European programming labour, for example.
There is certainly a risk that that EU workers will not be able to come here to work once Brexit is finalised. There is even a risk that that existing workers will have to return home. Anecdotally we have heard of EU staff returning now because they feel unwelcome after the vote.
Remember that some EU nationals may also have dual nationality or a right to remain because they will have lived here for long enough already by ‘B-day’.
The negotiation process is likely to take the full two years allowed by EU law. This is basically a negotiation not about the exit but about the relationship after the exit.
What not to do
Some employers will want to avoid employing EU nationals now, at least in longer-term roles (that is non-seasonal ones). Otherwise they may have to deal with disruption in 2019 when employment law in this area will change.
The problem with this approach is the risk of discrimination claims. Employment law permits an employer to refuse to hire an individual who doesn’t have the right to work in the UK. However, refusing to hire a person because he or she might not have a right to work in the UK at some point in the future is a very different prospect.
Next steps for employees
Some employees may be able to obtain a right to remain in the UK now. Those who have five years of residence or a year of permanent residence might future-proof their ability to work here by applying to change their status.
Next steps for employers
If employers wish to future-proof their businesses, they should not simply refuse to recruit EU nationals yet. This would be unlawful as direct discrimination on grounds of nationality.
If the role is really part of a long-term project (that is, longer than two years), an employer could adopt a policy of not hiring anyone without indefinite right to remain and work in the UK. This would need to be genuine and justifiable; this involves weighing up the possible disruption of losing them, the longevity of other staff in the role.
This uses the law on so-called ‘indirect discrimination’. The legal test is whether the policy is a ‘proportionate means’ of achieving a ‘legitimate aim’. This means is it no harsher than absolutely necessary when you’ve weighed up the interests of the employee and employer. It’s a fairly tough test generally and there’s no caselaw on it in a Brexit context yet. However, it will often be worth an employer chancing it when it considers the likely risk of a claim and amount of compensation. It would be much safer to wait for the negotiations to progress, because once the new rules are in place there is less speculation on the ‘interests of the employer’ side of the equation.
Do contracts need to be amended?
No. There is no need to amend any employment contracts. If staff are not permitted to remain/work in the UK after Brexit, they can be dismissed fairly and without race discrimination under employment law, whatever an out-of-date contract says.
We will of course keep you updated.
Part of our Brexit series.Read More
The TUC has reported that half of women suffer discrimination, sexual harassment or sexist treatment at work. It found that 80% of women are too frightened, ashamed or embarrassed to report it. Or they felt it would not be taken seriously. Even fewer go to employment solicitors about the problem.
From a sample size of 1,500:
- More than half of women had experienced some form of discrimination, sexual harassment or sexist treatment
- A third reported hearing unwelcome jokes or comments, such as inappropriate comments about their sex life or clothing
- A quarter had experienced unwanted touching, eg kissing or hugging
- A fifth had put up with unwanted advances
- Only a fifth reported it to their employer
- More women reported that they had been treated worse than better as a result of reporting the harassment
- 1% reported that they had experienced a serious sexual assault or rape at work
In 20% of cases it was their direct line manager who was responsible. In only 3% of cases was a junior colleague to blame
Sexual harassment is unwelcome behaviour of a sexual nature that creates an intimidating, hostile or humiliating working environment.
It is rare that victims of discrimination, sexual harassment or sexist treatment take legal action such as a tribunal claim. A 2013 survey by a firm of solicitors found similar figures (60 per cent of women had experienced inappropriate behaviour from a male colleague in the workplace and nearly half had been warned to expect inappropriate behaviour from particular colleagues when they had started).
Comments by those surveyed included:
- “I’m struggling to find a job as a web developer because all male offices think a girl would be offended by their sense of humour.”
- “At the job I recently left, a male manager said to me (in front of a female manager) that I would do well in the organisation because I have big boobs.”
- “I don’t trust my manager to support me in this or similar situations and I’m actively looking to leave my current position because of this. I felt that my concerns had been dismissed”
Employers have not been able to easily dismiss employees for retirement for a few years now thanks to employment law changes. This means that employees are choosing to work later into their sixties and even into their seventies. We have had two clients in the last year who were unfairly dismissed as they reached retirement age, with employers assuming that they would want to retire.
Not all employees want to continue working at this age though. Older employees may be worried as the Pensions Policy Institute (PPI) casts fresh doubt on the accessibility of their pensions. The PPI fears that many may miss out on their pension altogether. It has suggested that taxpayers with 45 years of work under their belts should be entitled to an early retirement. According to the thinktank, this would allow up to 250,000 individuals to enjoy a much-deserved post-work life after their careers have ended.
With successive governments’ employment law policy increasing the state pension age to 67 for both men and women by 2028, the future looks somewhat grim – many workers will likely die before reaching retirement. Although average life expectancy is rising, many UK employees will still likely be penalised by the change.
According to Age UK, those with low life expectancies and low incomes will suffer the most from this employment law change.
Mitigating the effects of increased State Pension age
Age UK has proposed policies to help minimise the downsides of an increased working age, including:
- Allowing early access to a reduced state pension. This is already an option in the USA and ensures that people can take a smaller pension in return for an earlier retirement.
- Allowing those with disabilities and/or care responsibilities to access their state pension early.
- Unlinking Pension Credit and the state pension age so the age at which Pension Credit is received can remain at 65.
By Leona GrantRead More