Discrimination

When employers don’t have knowledge of a disability

One in four employers would not hire a disabled person if they have knowledge of a disability, according to a survey [link to this] that Leonard Cheshire published recently. An alarming statistic to say the least. Employees and employers alike will find that the devil is in the detail. There is a very important detail to know when it comes to disability discrimination.

What constitutes disability discrimination?

There are six types of disability discrimination

1. Direct (unequal treatment because of a disability)
2. Discrimination ‘arising from’ (unequal treatment because of a related reason, eg absence)
3. Indirect (a one-size-fits-all policy that is harsher on the disabled)
4. Harassment (hostility because of a disability)
5. Not making reasonable adjustments for a disability
6. Victimisation (retaliation for bringing a discrimination complaint)

Knowledge of a disability is needed for 1, 2, 4 and 5. So an employer can’t be guilty of direct discrimination if it doesn’t know the employee is disabled. But does this mean actually knowing, or strongly suspecting or does having an inkling count?

Time to speak up?

What happens when you hide your disability from your employer? lets look at the case of A Ltd v Z.

The claimant in this case didn’t tell her employer that she had mental health issues. It dismissed her because she frequently took days off from work. These were days off which she had to take off because of her illness. Was it discrimination to dismiss her?  The question is whether an  employer can be guilty of disability discrimination if they didn’t know their employee was disabled.

The short answer is no. An employer can’t be liable for disability discrimination if they didn’t have knowledge of the disability. However, the longer answer is that in some cases the law will presume that an employer knows about their employees disability. This is ‘constructive knowledge’. The law recognises this in cases where the employer ought to have known or could have found about the disability of their employee. Red flags include lots of absences and visible symptoms.

The employee’s claim failed as the tribunal found even if the employer had inquired further into the health of the claimant, she wouldn’t have shared her health information. So the employer couldn’t have found out about her disability.

Does this case set any precedent?

It is still possible to succeed in a disability discrimination case, even if the employer is unaware. In cases like this the employer must have ‘constructive knowledge’ of their worker’s disability.

Can an employee be dismissed while on long- term medical absence?

An employee can be dismissed while on medical leave. But it can’t be because of medical leave or a disability, unless it is justified.

By Faize Tahir.

Image used under CC courtesy of Marco Verch

Sacked for posting on Facebook: How would the sacking of Israel Folau be dealt with under UK Law?

Rugby Australia has sacked Australian rugby star Israel Folau because of what he said in a posting on Facebook. He wrote the following on his church’s Facebook page despite being warned not to do so.:

“Drunks, homosexuals, adulterers, liars, fornicators, thieves, athiests and idolators – Hell awaits you”.

We’ve posted on this very recently, so we are confident about how a UK employment tribunal would handle this.

The Equality Act bans discriminating on the basis of religious belief or sexual orientation. It could therefore lead to disciplinary action and/or dismissal. But what happens if an employee expresses their religious view which happens to offend colleagues? Is it fair to dismiss an employee for such conduct?  Is the employee expressing their religious view or, discriminating against colleagues of a particular sexual orientation? Does it matter if the offended person is gay?

To prove unfair dismissal, an employee must show that the decision to dismiss fell outside one of the ‘fair reasons’ of dismissal. And they must show it was unreasonable.

For direct discrimination, an employee must show that the employer treated them less favourably than someone without the same ‘religion or belief’ or ‘sexual orientation’. The employee must then show that the treatment was because of their belief.

This article discusses how UK law would deal with this issue.

The Issue  

Mr Folau is a devout Christian. Rugby Australia recently terminated his contract for the facebook posting, saying that he:

“had committed a high-level breach of the Professional Players Code of Conduct warranting termination of his employment contract”.

Mr Folau said in the immediate aftermath “I share it with love. I can see the other side of the coin where people’s reactions are the total opposite to how I’m sharing it”.

Mr Folau has now lodged a claim to the Australian Industrial Tribunal (the equivalent to the UK Employment Tribunal) alleging his contract was essentially unlawfully terminated. He says “No Australian of any faith should be fired for practising their religion”.

How do UK employers deal with an employee’s use of social media

Social media has grown enormously over the last 10 years, to the extent that all employers can presume all their employees have a social media presence of some sort. Not all of them are as famous as Mr Folau of course.

Employers often have a social media policy. This aims to minimise the adverse impact of social media on businesses (i.e. bad publicity, revealing trade secrets or other confidential information). Guidelines typically include:

1. Avoiding social media communications that could damage reputation or business interests;
2. A ban on using social media to disparage the business, its staff or contacts;
3. A ban on sensitive business information (i.e. business performance), jeopardising trade secrets, confidential information and intellectual property; and
4. Being respectful to others.  

Breaching social media policies is generally regarded as misconduct. Depending on the circumstances they can result in formal disciplinary action including dismissal. Having a policy in place makes it harder for an employee to bring a successful employment tribunal claim.

How would Mr Folau’s case be dealt with by a UK employer and through the courts?

Assuming that the employer had a social media policy with the typical guidelines stated above, in our opinion, a tribunal would find the post disrespectful to other players/staff. It would bring the profession into disrepute. It would also have resulted in a victory for the employer in an unfair dismissal claim.

On one hand, employers must uphold discrimination laws, which the anti-homosexual views of the Old Testament are at odds with. On the other, people generally have a right to freedom of thought and expression, especially outside work. But employers have a right not to be associated with such views, which could bring the company into disrepute. And no, it does not matter if the posting offended no gay person.

We think that an employer would be justified in dismissing someone for such a Facebook posting made on a private account, certainly if the employee was well-known or linked online with the employer. This is because it could bring the employer into disrepute. But it depends on the context. If it were a blue-collar type situation (as opposed to a client-facing role) then it would be hard for the employer to say that its reputation could be damaged. This is because the general public would not be able to tie the Facebook posting to the employer.

Conclusion

This case is interesting because there  is a conflict between the protected characteristics of ‘religion or belief’ and ‘sexual orientation’. On one hand Mr Folau’s posting on Facebook was expressing his religious belief but on the other it was offensive to colleagues with modern and secular views on homosexuality. Mr Folau says that he was simply quoting from the Bible. But this does not make it right in the eyes of employment law.

Punishing someone for a Facebook posting is not the same as punishing someone for expressing their religious views in the way it would be to punish them for attending a Church that espouses bigoted views.

Nevertheless, employers should be wary of dismissing an employee with a link to their religious beliefs, as this carries a risk of a discrimination claim. It goes a long way to have considered this in advance in the social media policy or disciplinary policy.

It will be interesting to see how the Australian courts handle this case.

Hatton James Legal

Image used under CC courtesy of Robin Bye

A one-off discriminatory act can attract a high level of compensation

What would the compensation be for a one-off discriminatory act? In discrimination law, one of the main compensation categories is ‘injury to feelings’. Injury to feelings is designed to compensate the employee for the effect the act(s) of discrimination had. There are three levels of compensation. These depend on the seriousness of discriminatory acts, known as the ‘Vento  bands’ (after the name of a case):

Vento bands

• Lower band – £900 to £8,800 – for less serious cases eg one-off discriminatory acts;
• Middle band – £8,800 to £26,000 – for more serious cases; and
• Top band – £26,000 – £44,999 – for the most serious cases.   

We have written about this elsewhere.

Change in the law

In the recent the case of Base Childrenswear Ltd v Otshudi, the EAT (the Employment Appeal Tribunal) agreed with the ET (Employment Tribunal’s) decision to award £16,000 for a one-off discriminatory act (harassment).  

Background

Ms Otshudi worked as a photographer. She complained about six acts of racial harassment from colleagues. The company made her redundant. However she thought the dismissal was because of her race. So she appealed and submitted a grievance. The employer failed to respond to either.

She lodged a claim for racial harassment at tribunal. The employer changed their story at tribunal, saying that the reason for her dismissal was dismissed due to suspected theft. This was a mistake because it is rarely wise to change your story during legal proceedings.

The tribunal found that Ms Otshudi was a victim of racial harassment. It awarded (among other things):

• £16,000 for injury to feelings (on the basis of one harassing act); and
• £5,000 in aggravated damages (mainly because the employer failed to respond to the appeal and grievance, and lied about the reason for the dismissal). 

The employer appealed the tribunal’s decision to award £16,000 in respect of one act of harassment.

The employment appeal tribunal found for the employee. It said that just because there had been a one-off discriminatory act, that didn’t mean that the award should be in the lowest bracket. The focus should be on the effect on the employee.

Conclusion 

This decision illustrates that even a one-off act of discrimination can be very costly for an employer. This is because when assessing compensation the focus isn’t just on the number of discriminatory acts, but rather the affect on the employee. The employer can’t always know what this will be. this is because the employee might go off sick as a result, have trouble sleeping, see a doctor or specialist, be prescribed pills and so on. So compensation for a one-off discriminatory act which hurts an employee’s feelings deeply will be higher than for a number of acts which add up to less hurt.

Therefore this case highlights the importance of employers doing everything possible to prevent any discrimination. This includes having an equal opportunities policy in the staff handbook, and providing training to ensure all employees, especially managers, are aware of the zero-tolerance policy to discrimination in the workplace. 

Image used under CC courtesy of Howard Lake

Religious conversations and gross misconduct

Can religious conversations get employees into trouble for gross misconduct?

This article looks into a Court of Appeal case about the NHS dismissing an employee who had religious discussions with patients.  

Background

UK law outlaws religious discrimination in the workplace. If an employee engages in it, disciplinary action could result. That could lead to a dismissal or resignation which is unfair.

What happens if an employee claims that disciplinary action taken because of religious conversations is discriminatory? This case comes only a couple of years after the case of the prison worker who told convicts that homosexuality is a sin. In that case, the EAT said a workplace ban on that sort of discussions was not indirect discrimination. It was a ‘proportionate means of achieving a legitimate aim’ (keeping order and safety in the prison). 

However this was a case about unfair dismissal. In order to prove unfair dismissal, an employee must show that the decision to dismiss fell outside the prescribed ‘fair reasons’ of dismissal. And they must show it was unreasonable.

The allegation against Mrs Kuteh

Mrs Kuteh, a devout Christian, had 8 years’ service. Her role was to carry out pre-operative assessments on patients. The NHS began receiving complaints from patients that she was discussing religion with them. Specific complaints about Mrs Kuteh included:

• Saying ‘what do you think Easter is about’, to a patient, who responded that ‘[she] wasn’t there to talk about religion’;

• Telling a cancer patient that if they prayed to God, they would have a better chance of survival; and

• Giving a patient a bible and telling them she would pray for them.

The NHS suspended Mrs Kuteh whilst they investigated the allegations. At the investigation meeting Mrs Kuteh argued that her actions were a legitimate part of her healing work. In a later disciplinary hearing, the NHS dismissed her for gross misconduct.

Mrs Kuteh brought a claim of unfair dismissal. She argued that she had a right to freedom of thought, conscience and religion or belief under the European Convention of Human Rights. The ET rejected this. It said the dismissal was fair because her conduct fell in the category of converting, or attempting to convert someone from one religion to another (this is known as ‘proselytising’). It wasn’t expressing or having those religious beliefs.

What the case says

Mrs Kuteh appealed it up to the Court of Appeal, which agreed. It said that proselytising against someone’s will isn’t protected by the Convention on Human Rights.

Therefore employers should feel confident in giving warnings or even dismissing staff who have this kind of discussion with others. But remember that there is a gradient of behaviour ranging from “I went to Church on Sunday” through “Will you come to Church with me on Sunday”, all the way to “Homosexuality is a sin”. There is no blanket rule so you must take each case on its merits.

Case report: Kuteh v NHS

By Zahid Reza

Image used under CC courtesy of Masterbutler

Is vegan discrimination a thing?

This article discusses whether courts and tribunals will agree that the Equality Act protects vegan discrimination following reports of a recent case.

Victimised music lecturer wins £180,000

The Equality Act 2010 forbids victimisation. The employee must show that they were subjected to some negative treatment, as a result of a protected act (discrimination).

Wrongful dismissal is a breach of contract claim for unpaid notice pay. If an employer legitimately dismisses an employee for gross misconduct, they don’t have to pay the notice period.

This article looks at the recent case of Francesca Carpos. She claimed the employer dismissed and victimised by dismissing her. She had circulated a memo which allegedly brought her employer’s name into disrepute.

Facts

Dr Carpos was a bassoonist and lecturer at the Royal Academy of Music. Dr Carpos had done PhD research into discrimination in the classical music industry. One of her findings was that people often used the term ‘gypos’ for session violinists. She wrote a memo to students, advising them on how to fit in and get a job. The memo included:

“….Be discreet; what’s on tour stays on tour. Become familiar with shared understanding of anecdote, caricature, stereotype and jokes. Google them and look on YouTube, if this is not your culture. For example, you may hear terms like this: Pond life = (string players). Gypos (short for gypsies) = violinists specifically…”.

She circulated the memo to around 800 students. As a result a letter was sent to the Student Union, accusing Dr Carpos of ‘encouraging the development of a toxic environment in which musicians are complicit in the harassment of and discrimination against colleagues’.

Dr Carpos was dismissed for gross misconduct, that is bringing the academy into disrepute.

She didn’t accept this and lodged a claim of wrongful dismissal and victimisation. Dr Carpos argued that the it couldn’t be true the reason was the outpour of hysteria from the student body. The employer must have been discriminating – it victimised her.

Decision – the employer victimised her

Dr Carpos won her claims and the judge awarded over £180,000 in compensation. The tribunal concluded that the academy’s decision to dismiss her on grounds of gross misconduct was wrong and so she was entitled to her notice period. In relation to victimisation, the tribunal concluded that the dismissal was so obviously trumped-up that it really had to do with her having brought a previous complaint about discrimination.

Curiously, the judge also indicated that if Dr Carpos was eligible to bring an unfair dismissal claim, she may well have succeeded in that, too.

Therefore this case serves as a stark reminder that employers shouldn’t be pressured into making knee-jerk reactions because they may inadvertently (1) wrongfully (or unfairly) dismiss; and (2) discriminate against or victimised the employee.

Image used under CC courtesy of Becs @ Catching Sundust

Harassment at work: Context is everything

Introduction

Harassment at work often leads to employment tribunal (ET) claims for discrimination. The employee must show that an individual suffered:

(1) unwanted conduct (that is related to a protected characteristic (i.e. age, disability, gender reassignment, race, religion or belief, sex and sexual orientation);

(2) that has the purpose or effect of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. This is quite broad and covers any untoward behaviour.

Analysis

We look at a recent case which clarifies that a successful case for harassment at work depends on the specific facts.

Mr Evans started working for Xactly Corporation as a sales rep from 4 January 2016. He was called a ‘fat ginger pikey’ at least once during his employment. Mr Evans had strong links to the traveller community, was diabetic and sensitive about his weight. Xactly Corporation decided to dismiss Mr Evans for poor performance.

Mr Evans then brought a claim for harassment against Xactly in relation to the ‘fat ginger pikey’ comment, on the grounds of disability and race. He said that ‘fat’ related to his disability and ‘pikey’ related to his ethnic origin. The ET found that whilst in theory the comment was potentially a discriminatory and harassing comment, it wasn’t harassment. The comments:

• weren’t ‘unwanted’ (because Mr Evans actively participated in the office banter);
• they didn’t have the purpose of violating Mr Evan’s dignity, or creating an intimidating environment;
• and they didn’t have that effect (because he wasn’t offended).

Mr Evans appealed to the employment appeal tribunal (EAT). The EAT ruled that the tribunal was entitled to come to this conclusion because harassment claims are highly fact-sensitive and context-specific.

Conclusion

This case reminds us that although an employee who puts up with harassment at work for years and even joins in with it doesn’t necessarily find it unwanted. Their reaction to such conduct will be taken into account (including their level of participation, or the extent to which they appeared to get offended). This can be critical in establishing whether or not harassment has taken place.

Before an employee brings a harassment claim, it is helpful to keep a diary, register displeasure (eg with a grievance) and get colleagues on board to support their account.

Case report: Evans v Xactly.

By Hatton James Legal

Image used under CC courtesy of Gabe Austin

Could settlement agreement confidentiality clauses be banned?

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

1. will not report serious wrongdoing to the police;
2. will feel compelled not to assist with relevant law enforcement investigations or prosecutions; and
3. will feel unable to speak openly and in the public interest about serious wrongdoing

thus inhibiting public awareness and debate.

The report is the result of a six-month inquiry prompted by various incidents reported in the press including the reported sexual harassment by Hollywood film producer Harvey Weinstein.

It recommends:

• 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.

Gay cake and sexuality discrimination

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.

Conclusion

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.

Professor sues Oxford University after “forced retirement”

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 summonedbyfells