Thirty years after the Sex Discrimination Act 1976 (updated in the Equality Act 2010), the wage gap still exists. Some employment solicitors are wringing their hands and the media has recently taken an interest.
Media coverage and government initiatives focus almost exclusively on the pay gap between men and women. But an area of the pay gap that has been mostly overlooked is the motherhood pay gap.
A recent report by the Institute for Fiscal Studies (IFS) points out that men are paid almost 33% more than mothers.
What causes this? How can society claim equality as a value and yet still be plagued by wage gaps? But most importantly, how do we go about ending this sex discrimination?
What is the pay gap and why is it important?
Before we look at how to fix the pay gap, we need to understand what it is. The gender pay gap is not really about men and women being paid differently for doing the same job, it’s that as you get higher up the career ladder, fewer women are represented. Men are simply more likely to be promoted to higher-paying jobs.
The gender pay gap reaffirms stereotypes about roles of men and women. Women mostly look after children, interrupt their careers and this adversely affects mothers’ pay. The longer this has gone on, the more entrenched it has become and the more we take it for granted. Pay gaps are the natural consequence of the glass ceiling.
How does the pay gap adversely affect mothers?
Up to twelve years after the birth of her first child, a mother’s pay falls by about 33% compared to men. It falls by about 7% less than her childless female colleague.
Bizarrely, fathers are often perceived to be more hard-working and this is reflected in their pay. Fathers are paid on average 15% more than childless men . This is because working mothers are usually considered to be of less value to a company. This was illustrated when Nigel Farage made headlines for baldly stating that mothers are worth far less to their companies on their return to work. This continues to perpetuate the idea that women have to make a choice between work and having a family.
When returning to work, mothers often feel they have no choice but to return in a part-time role, because family care and domestic responsibilities are still not equally shared. Far more women than men choose to take parental leave. Employment solicitors and commentators on sex discrimination observe that changes need to be made to allow women to make the decision to have children and not face repercussions for it.
What can be done?
There has been some progress in reducing the gender pay gap, the IFS notes. The current 18% gender pay gap is down from 23% in 2003 and 28% in 1993. Suggestions have varied from earlier childcare opportunities to combining education and the workplace. But things are unlikely to change until fathers take equal shared parental leave, allowing mothers to return to work. And they don’t.
Main image courtesy of Reynermedia used under CCRead More
Employment law’s newest concept is fattism, which is prejudice against people who are fat. This includes bullying or harassing someone because of their weight or refusing a job or promotion for that reason. In the workplace this type of discrimination is common and studies have shown that it is seen as a social norm to make fun of overweight people.
Does fattism only happen to the clinically-obese?
A recent study suggests no. Fattism in the workplace occurs even when an individual is not fat. Women are more likely to experience weight-based workplace discrimination than men. The study revealed that even a slight increase in size had a negative impact on women’s job prospects. This study reaffirms that individuals are more likely to employ someone who they deem looks ‘right’ for the company. Unfortunately, this can be discriminatory as it is usually to the detriment of women, ethnic minorities and those who appear bigger (even if their BMI is in the healthy range).
From an ethical view the results from the study are unsettling as they reveal gender inequality in the workplace. They highlight the unrealistic challenges women face against expectations of how they should look. This could be a factor in the widening wage gap between men and women. However, the question remains as to whether such discrimination is illegal in the eyes of the law.
Employment law and fattism
We are aware of cases that have been in the news where employees have been threatened with the sack for not losing weight.
Employment law doesn’t explicitly ban weight-based discrimination. In the Equality Act 2010, only age, disability, gender reassignment, race, religion or belief, sex and sexuality are protected. However, recent case law suggests judges will step in to fill the gap.
In a case in 2014, the European Court of Justice had to decide as to whether a male Danish child-minder weighing 160kg was illegally discriminated against for being obese. The ECJ ruled that obesity is a disability if it hinders the full and effective participation in professional life on an equal basis with other workers. The UK followed suit in 2015 when a case in the employment tribunal in Northern Ireland unanimously decided that a morbidly obese employee was disabled, upholding his claim of harassment (he was told “you’re so fat you can hardly walk”).
What does this mean for employment law?
The legal ramifications are not that clear. To obtain the protection of discrimination law, obesity must me not just cosmetic but medical. The law offers protection to people who are obese if their weight affects their long-term health. At that point, employers will have to make adjustments that could include bigger chairs, parking spaces closer to work, customised desks and so on.
People who are obese but have no health issues fall outside the protection of discrimination law. But as mentioned earlier, studies show that you don’t have to be medically obese to experience fattism. Some employment solicitors argue that weight-based discrimination should be protected under the same grounds as age and gender. This would include everyone who is discriminated because of their weight or size.
Employment law may not clearly state that weight-based discrimination is unlawful but the employment tribunals need to interpret discrimination law in line with European rulings, which means using disability discrimination to fill the gap in some cases. Employers need to be aware of weight-based prejudices and discrimination. They need to make sure to take action when any employee suffers from any sort of bullying or harassment because of their weight.
Image courtesy of Hiroaki Maeda and licenced under CCRead More
Note: a subsequent legal change has affected the accuracy of this material.
The Labour Party has told the country its position on ensuring that employees have access to employment law rights.
This position is to do with Employment Tribunal fees. Labour has vowed that if they were to form the next government, they will abolish the current employment tribunal fees that were introduced by the Coalition Government in 2013.
Employment Tribunal fees currently stand at £250 to lodge most claims (simpler claims are £160) and £950 for the final hearing, regardless of length (£230 for simpler claims). Our clients often struggle to pay the hearing fee if they are not covered by insurance. Even if the fees are covered by insurance you usually have to pay it up front and claim it back from the insurers at the end of the case. The tribunal does warn you far in advance that the big fee will become due but not everyone budgets for it.
You don’t have to pay Employment Tribunal fees if your income and assets fall below certain levels. See our post on fee remissions here for further details.
If you win an employment tribunal case that you brought, the employer will (usually) be ordered to reimburse your tribunal fees. The judge has a discretion as to who shoulders the fees, and we have never seen a case where the claimant has won but not been reimbursed.
If a claim is settled, any fees paid are not returned, even if the settlement saves the tribunal the cost of the hearing, so our advice is to pay the hearing fee at the very last minute.
Since the introduction of these fees there has been a severe drop in claims made by employees. It has been estimated that two-thirds of would-be claimants are dropping their Employment Tribunal claims.
Employment law commentators say that this has harmed the rights of employees to have access to justice. They say that it is now too expensive to obtain access to justice.
by Jason Harbourne
Image courtesy of Garry Knight, licenced under CC
Sam Allardyce has been sacked from his new post as England manager, with a 100% performance record (after just one football match). And by “sacked”, we don’t mean after a disciplinary process, we mean “left by mutual agreement”, which is the way things are done in high-profile positions, so as to preserve dignity.
It stems from a newspaper investigation claiming he was selling advice on how to get around rules on player transfers. These rules exist to create stability in the football market. He wasn’t proposing to do anything unlawful.
The Daily Telegraph said he had had a meeting (with undercover reporters) posing as businessmen. He allegedly said it was “not a problem” to bypass rules on third-party player ownership and claimed he knew of agents who did it “all the time”. He then agreed to work for them on the side for £400k.
The Football Association has said that Allardyce’s conduct was “inappropriate” and Gareth Southgate has taken over as a temporary manager.
“He accepts he made a significant error of judgement and has apologised,” the FA said.
For the rest of us who are not England managers, the story is an interesting reminder that you can be dismissed for doing things out of work, that have nothing to do with work, if they could bring the employer into disrepute.
We have seen disciplinary dismissals for this reason where a lollipop lady was seen smoking marijuana and where an office manager gossiped about a director.
In both of those cases, the employer had taken the precaution of making “bringing your employer into disrepute” into an example of gross misconduct in its disciplinary policy. We have never seen a dismissal where it wasn’t, but we don’t think this would save an employee’s job. If you are an employee, you have a “duty of fidelity” towards your employer and are in a kind of relationship with them where you each implicitly agree not to devalue each other in the eyes of others without a good reason. It is part of the duty of trust and confidence that underpins every employment relationship.
We have on client at the moment who worked in a shop and was disciplined for being seen in work with a carrier bag of a competitor. We think that is going too far. And it is certainly the case that employers tend to see that sort of clause as a “catch-all” for many sorts of conduct which don’t really bring the employer into disrepute at all.
By Jason Harbourne
Image courtesy of Ben Sutherland
Birmingham employment lawyers Hatton James legal have issued a record number of tribunal claims in September 2016.
We issued five claims in September 2016, an average of more than one per week.
Managing partner Jaspal Singh said “it’s been a really busy period for us, when the sector as a whole is struggling, because of various government initiatives to reduce the number of claims going through the employment tribunal“.
Hatton James is among the foremost among Solihull and even among Birmingham employment lawyers. Jaspal said “most of our clients come through referrals or having searched online and seen that we are well-reviewed on the internet“.
The claims issued this month include:
- A new trainee dental nurse who resigned because of her manager’s nastiness after she pointed out problems with infection control
- An HGV driver sacked after 12 years when his licence was suspended for two weeks on medical grounds
- Two jewellers, one who was dismissed because she needed time off to recover from an old shoulder injury …
- and the other, who resigned because of rudeness when a new manager took over
- A factory manager whose employer wanted him to slow down more than he did, as he reached retirement and ranted at him in frustration
These are a typical mix of the claims that Birmingham employment lawyers see; unfair dismissal, age and disability discrimination and whistleblowing. A couple are what we consider to be open-and-shut cases; others are more risky, perhaps because the depend on what the witnesses or the paperwork will say. One of these tribunal claims is funded by a no-win, no-fee agreement, one is paid for privately and in the other cases the client has legal expenses insurance. In each case we feel that the employee really needs to issue a claim in order to protect their legal rights and obtain a settlement or compensation.
These claims come on top of our bread-and-butter work of guiding employees and employers through grievances and disciplinaries and advising on the terms and effect of settlement agreements.
In a future blog post, we’ll take one of these cases as a worked example and explain what happens from when the client walks in through the door.
By Jason HarbourneRead More
Employment law commentators have welcomed a recent survey of 1,000 women for a Radio 5 live programme. It found that most women’s work is affected by period pain.
The Emma Barnett programme set up a confessional booth to allow women to speak anonymously about their experience of period pain at work.
Period pain takes the form of spasms, sometimes accompanied by nausea, diarrhoea and headaches. The symptom, a cramp caused when the womb contracts to shed its lining, affects 90% of women. It affects 52% of women badly enough to interfere with their work.
17% of women have taken at least a day off in their careers because of it, the study found.
Menstruation is normal, but some women, especially those in predominantly male workplaces suffer in silence. Only a quarter of those having problems open up to their manager about the cause. Common excuses include headaches, stomach pains, colds or flu. Staff may instead lie outright and say they are going to a medical appointment.
This issue doesn’t really have an established place in employment law in the UK. The news media reporting on this survey have turned up a few enlightened employers which give time off to staff who may be suffering. However, this is far from common, in our experience.
Menstrual leave is given to female employees in Japan. Some companies elsewhere give leave which is a combination of sickness and holiday, to do with as employees want.
If managers are male, which tends to be the case, women fear they won’t be treated sympathetically because the condition is poorly-understood and rarely discussed by men. They sometimes fear discussion about the monthly cycle for fear of being belittled as “hormonal”.
Perhaps because this issue is one that is hard for employees to talk about, there are no employment law cases on the topic. But if an employee felt they were being treated unfairly in performance reviews, attendance processes or dismissal, then there could be claims for sex discrimination or even disability discrimination.
Birmingham employment solicitors recently won a victory for a mother of one whose employer refused to allow her to return to work part-time after a pregnancy (we read in the Post).
Emma Seville was a cabin crew manager for Flybe at Birmingham Airport for over a decade. She worked full-time on fully flexible working hours. After she had a baby in August 2015 she wanted to return to work on fixed part-time hours to fit around childcare arrangements. She made a flexible working request. Her employer would only offer hours that they would choose to fit in with their needs. This meant that every time the rotas came out she would need to make new childcare arrangements. It meant that she couldn’t juggle her job and her childcare responsibilities effectively.
She took her employer to the employment tribunal. The employment tribunal found she had been the victim of indirect sex discrimination against.
Indirect sex discrimination (see our page on sex discrimination) is poor treatment because of something that tends to come with being a woman or that women mainly experience. For example, women have greater childcare responsibilities.
The practice of requiring full-time working or long hours that affects women more acutely (as they have the most childcare responsibilities).
Such practices are fine if they are justified, which is a legal term meaning they are no more discriminatory than they have to be in order to reach some legitimate aim. But in our experience, it is a rare case when part-time working or job-sharing cannot be made to succeed, with the right will.
This sort of case is familiar to employment solicitors up and down the country. Recently, our firm settled a similar case, where an employee resigned after not being allowed to change her hours or work as part of a job-share when her nursery’s opening times changed.
Emma didn’t resign and her employer will likely agree compensation and discuss working hours with her. They probably fought the case because they were hoping for a precedent that they could use with other employees in the country. Their bill for employment solicitors to fight the case is probably several times the compensation payment.
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Deliveroo, an online food courier, has come under criticism by employment law commentators due to its controversial contracts with delivery drivers. They seek to prevent their (self-employed) staff from being able to take court or tribunal action so as to be recognised as employees of the company.
The clause reportedly states that the driver promises not to bring any tribunal or court claims in which they contend that they are a worker.
Another clause adds that if such legal action is taken, the individual must pay Deliveroo’s legal costs of defending the claim.
Why is this a problem?
Deliveroo sees its couriers not as staff of the company but instead as independent contractors who are offering their services via Deliveroo’s IT platform. If this is what they are, they have fewer rights than employed staff and cannot bring tribunal claims or organise industrial action. Nor can they collectively negotiate better pay and conditions than the £7 an hour, and then £1 per delivery they receive.
In fact, they may actually be employees – until a case gets to a tribunal, it is often unclear what is the employment status of an individual who provides their services personally. Also, the exact definition of ‘employee’ can differ a little according to the exact claim being brought. Someone can be an employee for employment law purposes but not for tax purposes. Finally, even if they are not employees, they could be ‘workers’, who have some, but not all, employment rights (including working time protection).
It is clear that these clauses are not compatible with employment law, employment solicitors agree. A clause providing for reimbursement of legal expenses is of little or no legal effect, because penalty clauses are rarely enforceable and clauses barring access to an employment tribunal are never enforceable. Statutory employment rights can’t be waived outside an employment tribunal unless through a settlement agreement, on legal advice or through ACAS. A clause indemnifying an employer against the costs of defending a claim would likely be void for being contrary to public policy.
However that is no reason not to include such a clause in an employment contract as it will still discourage claims from employees, both those represented by employment solicitors and those acting alone.
By Stephanie Stevens