We saw this job vacancy on the internet. You might ask what is wrong with seeking a bearded retiree to a deliver parcels by sleigh and be paid in mince pies and sherry – after all this has been the protocol for centuries!
Well, it’s bound to lead to employment claims for this recruiter. Let’s take it apart:
The Equality Act requires a recruiter to consider a wide enough pool of potential applicants to avoid discrimination.
This advertisement deters candidates who are young (“white hair” and “retired”) and female (“beard”). Age and sex are “protected characteristics” and cannot be used as a criterion for selection. Why shouldn’t a young female applicant, who can drive a sleigh etc, perform the job?
Using the word “active” implies that only able-bodied candidates are suitable, which again deters those with disabilities.
If Santa is diabetic there is no reason why mince pies and sherry could not be substituted with gin and sugar free tonic and salted peanuts! This may be an adjustment the employer should consider in order to avoid employment claims.
But wait! Muslims, Presbyterians and Quakers are unlikely to be open to being paid in alcoholic drinks. This is indirect discrimination (a one-size fits all policy that affects some religions more than others).
But this is Santa we’re talking about. Santa must be an older man, that’s what the role requires.
Or, in legal terms, could the direct discrimination be justified by the ‘genuine occupational requirement’ defence?
It depends on whether Santa is performing a role or playing a role. If only people with a particular protected characteristic can do the job (the usual example is a male or white actor needed for a white male role) then these requirements are needed. But there is no such requirement to perform the role of delivering parcels.
If Santa is playing a role, then the ad is fine from the discrimination angle. But as we all know, Santa is real and the ad falls foul and could lead to employment claims.
Excluding candidates based on protected characteristics can be costly – tribunal claims can be bought by anyone who sees a job ad. All this would lead to claims of a few thousand pounds in injury to feelings per applicant who brings a claim, plus some compensation for the chance of losing out on the job by otherwise qualified applicants.
National Minimum Wage and Working Time Reg claims
Payment in sherry rather than money is a real concern, because workers should receive the NMW in the form of cash, rather than benefits in kind (regulation 10(f) of the NMW Regulations 2015). Santa must get at least £187.92 for the 24 hour shift.
Obviously, deliveries must take place overnight, otherwise the world’s little boys and girls would see them take place and the magic of Christmas would be spoilt. However the employer must ensure that no night worker doing work involving special hazards or heavy physical strain works for more than eight hours in any day (reg 6(7) of the WTR). In our view, carrying loaded sacks onto slippery roofs counts under this regulation. Therefore the employer should be looking for several candidates to cover the shift.
Under reg 7(1) Santa is entitled to a free health assessment. If that shows that the cold conditions would be bad for him (or her) then deliveries would have to take place in the daytime, on Boxing Day (reg 7(6)). Regardless of the health check results, Santa would have to get the deliveries done in 13 hours to get the 11 hours’ uninterrupted rest per day given by regulation 10.
Other WTR regulations allow Santa regular rest breaks because the work is ‘monotonous’. Santa should certainly take opportunities to sit down in armchairs by the fireside.
Holiday entitlement accrues, of course, as Santa rides around the world’s rooftops. Parents should put an extra 12.07% of sherry in the glass and leave a note to explain that the extra sherry represents rolled-up holiday pay.
There is no legal entitlement to extra pay for working on a bank holiday.
Could Santa be self-employed? This is an uncertain area for employment claims and we’re sure many Christmases will go by before this is area becomes clear. As there are no hours mentioned in the ad, we presume Santa will be on a zero-hours contract, which indicates they are likely to be a worker rather than an employee.
Neither the NMW nor WTR apply to self-employed people. If so, ignore everything in this section!
Health and safety
Anyone thinking of giving alcohol to staff needs to know that they may end up sharing liability for any alcohol-related sleighing accidents that take place.
In fact, Santa’s job is a health and safety nightmare from the employment claims perspective. Chimneys may look roomy at the top but the health and safety people don’t let children or grown-ups go up or down chimneys these days.And we’re not even going to discuss compliance with the Work at Height Regulations 2005!
Merry Christmas from Hatton James Legal!Read More
From time to time we tell you about a Birmingham employment law case we have recently dealt with. Our other stories are here. This is the story of Lisa, who was asked to leave (with a settlement agreement offering him £25,000) after 23 years.
When an employee calls us to say that their employer has asked them to leave like this we direct them to our page on settlement agreements. We explain that there is no charge to them if they want to accept the deal – the employer pays our costs of advising on what it says and means. Like most employment lawyers we include some redrafting and advice on whether it’s a good deal, at no extra charge. But not all employers offer an amount which is a good deal and often the employee can obtain a better deal by calling the employer’s bluff.
Typically the employer plays a game of ‘carrot and stick’, offering a sum of money to leave, alongside a threat to find a reason to dismiss them if they don’t accept – redundancy or poor performance, or one of the other ways an employer can dismiss fairly.
Lisa was in this position. She was an executive on a salary of £50k, and was being threatened with a PIP (a performance improvement plan) and possible dismissal if she didn’t improve. But there was, in reality, nothing wrong with her performance. It was just that a new manager wanted to put ‘his guy’ in Lisa’s place.
Often with a performance dismissal it is hard for the employment lawyers to assess whether the employer is likely to be able to dismiss fairly by blaming the employee for performance problems. This is especially true in executive situations, where judging performance is quite subjective. But Lisa advised that she was willing to call the employer’s bluff and go through the PiP, showing in detail how her performance was what a reasonable employer could expect.
If an employer is not likely to show poor performance then it is not likely to win a tribunal claim if it wants to dismiss. In that case, the employee’s position is quite strong. But in such a case the employee rarely wants to stay employed there. So we told Lisa that we would help to improve the offer by negotiation. We offered to either charge modest fees in three hour tranches or take a percentage of the improvement in the compensation (no-win, no-fee). She chose the first option and as it turned out that was the right choice.
We showed that Lisa was prepared to tough it out and provided the employer with a detailed analysis of why the allegations of poor performance were unfair, together with an assessment of where that left it legally. We had a hard-fought battle with the employer which took several weeks to complete but increased the offer by £15k and our fees were £1,200 in the end.
So with a combination our advice not to accept the first offer, confidence in us from Lisa and a joint willingness to do battle, we got a great deal for her.
Not all settlement agreement cases are like this but in many instance an improved offer can be negotiated. If the employment lawyers offer a no-win, no-fee agreement, it is typically about 35% of the improvement in the offer. So Lisa ended up with an extra £14k. We hear she is very happy in her new job and has invested the extra money in her pension!
By Zahid RezaRead More
The latest target of the #MeToo movement could be settlement agreement confidentiality. It is currently being reported that the Government is to examine use of NDAs in employment disputes. An NDA is a ‘Non Disclosure Agreement’, a legally-enforceable promise by an employee not to reveal, eg that they have suffered from discrimination or other breaches of employment rights. These are a key feature of settlement agreements.
This news comes on the back of a report published recently by the House of Commons’ Women and Equalities Committee. The key finding from the report is under the heading “A chilling effect? The silencing of victims”:
We are concerned that NDAs are being widely used to silence victims of sexual harassment in the workplace and to prevent cases being brought into the public eye for fear of bad publicity. However, the confidential nature of these agreements makes it difficult to estimate out how many there are out there and to gauge how ethically they are being used. The main risks from unethical use of NDAs in silencing victims [are] that individuals
- will not report serious wrongdoing to the police;
- will feel compelled not to assist with relevant law enforcement investigations or prosecutions; and
- will feel unable to speak openly and in the public interest about serious wrongdoing
thus inhibiting public awareness and debate.
- A new duty on employers to prevent harassment, supported by a code of practice.
- Regulatory intervention backed by fines.
- Making it easier to bring a tribunal claim. It proposes extending the time limit for bringing a claim and greater compensation for discrimination.
- Making it a crime to misuse confidentiality clauses in settlement agreements and letting employees who have signed them report wrongdoing to bodies such as the Equality and Human Rights Commission.
- Collecting data on the extent of sexual harassment in the workplace.
It is estimated that 40% of women half that number of men have experienced unwanted sexual conduct at work. Only 40% of employers mention at induction the behaviour expectation and how to report breaches.
Whilst the committee considered that settlement agreement confidentiality clauses are a widespread problem that is not being taken seriously. Our experience is that employers are not proactive in preventing it but that they don’t in fact condone sexual misconduct when they come across it.
it is interesting that MPs are mooting extending the three-month time limit for bringing claims for sexual harassment. We find that this limit is short but that it rarely causes problems for employees, who very rarely leave it too long to do something about it.
We don’t anticipate that settlement agreements will be affected as the report proposes. While in theory it is possible to have a law that allows parties to settle claims and potential claims whilst allowing them to talk about the circumstances that led to the disagreement, it is hard to imagine that industry would allow this change without making a big fuss. We believe that paying ‘hush money’ to claimants is something that is too ingrained in the system.Read More
Sexuality discrimination is outlawed both in the workplace and when buying goods and services.
In order to prove direct discrimination, the employee or customer must show that the business treated them less favourably than they would have treated others because of one or more of what are known as the protected characteristics. These are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.
This article looks into the recent Supreme Court case nicknamed the ‘gay cake case’. It centred around a customer who ordered a cake with a pro-gay marriage message to be iced onto it. The customer, Mr Lee, is a gay man who volunteers with an organisation that supports a campaign to allow same-sex couples to marry in Northern Ireland. In 2014 he asked the bakers to bake a cake showing the Sesame Street characters Bert and Ernie with the headline ‘Support Gay Marriage’. The bakers refused.
Sesame Street clarify that Ernie and Bert are puppets, with no sexuality. They share a bed because of friendship and convenience.
The reason for the refusal was that the bakers are Christians who believe that “The only form of marriage consistent with biblical teaching is that between a man and a woman’.
Mr Lee complained about this incident to the Equality Commission for Northern Ireland (ECNI),which supported Mr Lee’s claim for direct and indirect sexuality discrimination (though this decision is only relevant to direct sexuality discrimination).
The courts initially ruled in his favour. The bakers appealed to the Court of Appeal, where they lost and appealed again to the Supreme Court, the highest court in the land.
The Supreme Court found for the bakers. It found that they had objected to Mr Lee’s cake order because of the message, not because Mr Lee is gay. They could show this because they had previously made other cakes for him.
Many commentators believe that the court relied on a technicality in framing the question in this way. The causal link between the conduct and the reason for it may have been weakened.
The case will no doubt help many employers faced with discrimination claims, not just claims for sexuality discrimination. For example, where an employer refuses to hire or promote someone because they don’t like their foreign accent, they might argue that they would have hired or promoted them if they softened their accent. Where an employer fires someone because they don’t agree with their activities outside work (eg attending Gay Pride), this used to be a sure-fire case of discrimination. But now, we are not so sure.
Ernie and Bert were unavailable for comment.
By Zahid Reza
Image used under CC courtesy of See-ming Lee.
Dr Dunn accused his employer, the prison service, of disability-related poor treatment. He had been suffering from depression and a heart condition, both of which are disabilities under the Equality Act. He had absence because of depression for just over a month and after an occupational health report he returned to work.
But a few months later he applied for early ill-health retirement because of his depression. This was a good job with a large employer and they have an insurance policy in place to cover staff who find themselves unable to work because of ill-health. The employer delayed dealing with his application (later acknowledging that the process could have been handled better).
The prison service obtained a medical opinion after a few more months. His application for ill-health retirement was progressed but the letter setting out his entitlement was full of errors such as his length of service and his financial entitlement. This caused further delay until eventually he left.
He claimed that the process was discriminatory on the grounds of his medical condition.
The tribunal found that he had been both directly discriminated against and subjected to unfavourable treatment for a reason arising from his disability. But the employer appealed and the case went all the way to the Court of Appeal, which rejected his case, stating that although the ill-health retirement process required improvement, it was not so deficient that it could be classed as discriminatory.
Discrimination is often more about conspiracy than ‘cock-up’. Not every instance of bad treatment that is tenuously linked to a disability or other protected characteristic will give an employee a finding of discrimination.
A finding of direct discrimination requires that the treatment complained about must be ‘because of’ the disability. Eg that a manager sat on paperwork because they perceived the disabled employee as a pain in the neck. A finding of discrimination arising from disability requires that the treatment must be ‘because of’ something (like absence) that is linked to disability.
This ‘because of’ link is fairly strict. It is not enough that the disability provided the context or the treatment or that it wouldn’t have happened without the disability – the tribunal needs to make a finding about the state of mind of the manager(s) involved in the decisions.
This is what the tribunal forgot in this case and why the Court of Appeal stepped in to find for the employer.
The judgement stressed that justified grievances about disability-related poor treatment don’t automatically lead to a finding of discrimination. In this case, the employer hadn’t discriminated against the employee, actually being very sympathetic towards the employee’s situation.
Case report:Dr Peter Dunn v Inspectorate of Prisons
Image used under CC courtesy of Marine Perez
A row over forced retirement has hit Oxford University, one of the most famous universities in the world. Famed for their elite facilities and higher-than-high standards, the Oxford University name commands respect for its quality and age.
However, a recent breaking story has put the esteemed University into the headlines with a claim that the University has not respected the age of one of its professors. John Pitcher, aged 67, was the leading authority at Oxford University on Shakespeare. However, now due to what the University have described as an act to ‘promote diversity’ the professor has been forced into retirement at the age of 67.
John Pitcher has been at St John’s College for over 36 years and is said to be deeply disappointed by the manner of his exit. The Professor alleges that the University stated they would only allow him to remain if he was able to prove himself to be “indispensable” . After 36 years of good service this left the Professor feeling degraded and unappreciated.
Has this happened before?
It has. In fact it has happened before at the very same university. In an almost identical situation Professor Denis Galligan, a law professor successfully challenged his enforced retirement at the age of 67 (the same as John Pitcher.) Also, Peter Edwards who was John Pitcher’s senior at the age of 69 was also allowed to keep his job after an internal appeal.
John Pitcher has claimed that the university is simply trying to maintain the status quo by enforcing the previous retirement age of 67 that existed in the mid-1980s. The University have claimed that the retirement was to “safeguard the high standards of the university” as well as “inter-generational fairness” with them looking to “refresh the workforce.”
What is the likely outcome?
Despite the fact that forced retirement at 65 has been banned since 2011, employers still have the right to set a compulsory retirement age if they can make a strong business case that if is in the interests of the business. The university have previously argued that they need to retire older staff in order to make room for junior academics, who would otherwise give up waiting and seek employment elsewhere. It is a complex legal argument and the likely result is hard to predict.
It will be interesting to see which way the tribunal decides on this case.
By Samuel Tahir
Image used under CC courtesy of summonedbyfellsRead More
Sexual harassment at work seems to have become an epidemic. According to a recent BBC survey, ‘a third of women are harassed at work.’ For all the progress that has been made on achieving equality, sexual harassment has the potential to undermine it all.
Is it really that common?
According to the TUC a huge 53% of women are said to have been subject to sexual harassment at work. Most of them have admitted to not reporting the harassment. The guilty party themselves may not consider their actions as sexual harassment, with the term ‘banter’ often being used to describe their words and actions.
Is it just women who are being harassed?
Although the primary target of harassment has been women, figures show the number of men being sexually harassed at work is rising. While many have suffered in silence, movements such as #MeToo have encouraged victims to step forward. And many of them are beginning to do just that.
What is sexual harassment at work?
According to the Equality Act, sexual harassment at work is any unwanted behaviour that is of a sexual nature or that is intimidating, hostile, degrading, humiliating or offensive. Or that it is related to the rejection of unwelcome advances.
How should victims respond?
Many victims of harassment are fearful of coming forward. They may fear they won’t be believed or the harasser may be their boss. The advice is to attempt to resolve the matter informally but if it continues, or the informal approach is not appropriate it is best to inform a manager and decide whether to raise a formal grievance.
Victims often maintain a diary of when and where the harassment took place and any witnesses present.
What can the law do?
Where a grievance doesn’t produce results, a claim to an employment tribunal for sexual harassment can be brought within three months of the last act in a chain of sexual harassment. See our pages on sex discrimination and tribunal hearings for more details.
By Samuel TahirRead More
There has been a huge recent development which sleep-in carers across the country will want to be aware of, potentially changing the lives of carers everywhere. The case has even excited the interest of the newspapers.
Should carers be paid the minimum wage during sleep-ins? There has been a wide range of academic opinion and conflicting cases. Some have argued that being paid the minimum wage whilst sleeping is outrageous. However, carers will rightly reply that they need be ready to wake up and provide support.
Some caselaw in the past supported the carers’ argument, saying that carers were entitled to the national minimum wage during sleep-ins, eg with night-watchmen, nurses answering non-emergency calls and care home managers. But the case of Tomlinson at the Court of Appeal has overturned them. The days of carers earning the minimum wage whilst they sleep are over.
Carers will now be classed as “available to work” under the National Minimum Wage Regulations. But they are not entitled to pay if “by arrangement” they sleep “at or near a place of work and are provided with suitable facilities for sleeping”. This would cover situations where someone is given a bed and told to sleep, but not ones where a mattress is put in an office and they are permitted to sleep.
So, what does this mean? Firstly, as we’ve already said carers will no longer be given the minimum wage whilst they sleep. Naturally, this will be seen as a source of frustration for many carers across the country as they are set to see their earning decrease significantly. But it’s good for charities such as Mencap and others that provide care, as the practice of paying a flat fee (£20 to £40) for a sleep-in has effectively been approved by the second-highest court in the land.
The courts haven’t completely removed the idea of carers being paid during sleep-ins. If carers are woken during the night then they are entitled to be paid for their work.
By Samuel Tahir
Image used under CC courtesy of Hugues.
Case report: Tomlinson-Blake v Mencap 2018 EWCA CiV 1641Read More
Recently, indirect religious discrimination has been in the news – with a bit of a twist.
With the ever-growing awareness for the environment, there is demand for businesses to be more environmentally-friendly. But it is less clear which strategies cross the line between forcing views on employees and those that encourage employees to make changes to their lifestyle.
Recently, a global company ‘WeWork’ (known for providing services to entrepreneurs)) have informed employees that meat, pork or poultry will not be an available option at company events as part of a company move to become more eco-friendly. WeWork go further and say that employees will be exempt from being reimbursed if they do choose a meat option.
Co-founder Miguel McKelvey’s view is that this contributes towards environmental protection and thus, keep up with the times. Research suggests over 25% of evening meals consumed by the UK population are meat- free. Mr McKelvey has said that the company could save “more than 15 million animals by 2013 by eliminating meat at our events.
The usual schemes are aimed at reducing plastic waste, planting additional trees etc.
Whilst WeWork’s bold move has good intentions, this arguably infringes an employee’s personal choice. Wework must be careful to ensure that this new policy does not disadvantage employees who don’t share the same viewpoint. This is because philosophical views are protected in the same way as religious views. Beliefs such as humanism, pacifism, vegetarianism and the belief in man-made climate change are all protected. Carnivore employees may well complain that WeWork should alter its policy to remove the disadvantage, or risk being liable for an indirect ‘religious’ discrimination claim.
WeWork do express they are not banning employees from eating meat altogether. However, it is clear that those who wish to do so during work hours are at a financial disadvantage. It seems to us that hosting a vegetarian-only barbecue would probably not place carnivore employees at a disadvantage but that providing a meat option more expensively might, as there is no business reason for it. Our view might be different if the company had an ethical stance to uphold as part of the reason for its existence.
An Employment Appeal Tribunal case (Chatwal v Wandsworth Borough Council) is relevant. Mr Chatwal’s employer introduced a new requirement that staff using the communal kitchen should clean the kitchen surfaces and the fridge. Staff members would occasionally come into contact with meat or meat products.
Mr Chatwal told his employer that compliance with the new requirement would conflict with his religious belief as a Sikh. Although, he was happy to clean other areas of the kitchen, he refused to clean the fridge. He was told he was not allowed to use the kitchen any longer.
Mr Chatwal lost his claim of indirect religious discrimination at the employment tribunal as he had failed to show that at least some Sikhs shared the same religious belief about touching meat. But he got his evidence about the beliefs of the Sikh religion together for the appeal. Expert evidence and letters from significant members of the Sikh society were relied on and the appeal allowed.
By Olivia Ferriday
Image used under CC courtesy of Jeremy Keith
Robert Jones (an employed Barrister at a law firm) has made a claim for breaching data protection laws, alleging that the firm accessed his personal emails over a period of several months.
This article looks into the facts of this case and give an explanation of the law in this area.
Mr Jones was an employed barrister at a law firm called Lexlaw. During his employment, he and a colleague exchanged messages (about kinky sex), detailing their preferences. There was an incident when he spanked this colleague over a desk at work. No immediate action was taken. Months later, Mr Jones got into a salary dispute with Lexlaw and resigned. When he refused to reconsider his resignation, Lexlaw suspended him for the spanking incident (an employee can be suspended during their notice period). Mr Jones resigned and took legal action against Lexlaw, alleging (among other things) that they had breached data protection laws by monitoring his emails.
Mr Jones said:
‘I had a consensual BDSM relationship with another employee, which included one brief incident in private on work premises months before the disciplinary. I was appalled to find out that my employer was monitoring my personal communications over a period of months and the ICO have confirmed that this is unlikely to have complied with the requirements of the Data Protection Act.’
Looking at the law
Under the new GDPR regime, employers must make it crystal clear to workers (1) how they might be monitored; and (2) why. They must have done an assessment ensuring the reasons are both justifiable and proportionate, which have legal definitions. Typically, employers deal with this by having a data policy.
The GDPR (the new piece of legislation that supersedes the Data Protection Act 1998) sets out rules about when monitoring should be carried out. For example it can be justified as necessary for someone’s ‘legitimate interests’ (when balanced against the rights and freedom that an individual has a right to expect).
This could mean recording retail workers at work to discourage shoplifting. In the context of employees’ emails, this means that mean monitoring to detect fraud, or for quality control. But it’s hard to see how this would apply to this employee. Few law firms see the need to delve into employee’s emails routinely. So this wouldn’t be justified. But if they do need to look into historic emails, for example to investigate a client complaint, then it would be acceptable to use anything incriminating that was found.
The hearing is set for 16 July 2018. It will be fascinating to see whether the law firm is judged to have breached data protection laws, and if so we expect the result to be far more than the few hundred pounds normally awarded, since these emails were of such an intimate nature.
By Aneesha Ali-Khan
Image used under CC courtesy of Dennis van der Heijden