Discrimination

Harassment at work: Context is everything

Harassment at work commonly leads to employment tribunal 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 basically covers any untoward behaviour.

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. During his employment, Mr Evans was called a ‘fat ginger pikey’ at least once. Mr Evans had strong links to the traveller community, was diabetic and sensitive about his weight. He was dismissed for poor performance.

He 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 ethnic origin. The employment tribunal found that whilst in theory the comment was potentially a discriminatory and harassing comment, it wasn’t harassment, because the comments:

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

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 potential unwanted conduct will be taken into account (i.e. their level of participation, or the extent to which they appeared to get offended) and this can be critical in establishing whether or not harassment has taken place.

Conclusion

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

Case report: Evans v Xactly.

By Zahid Reza

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

Sexual harassment at work

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 Tahir

Image used under CC courtesy of Y-Lee

Indirect religious discrimination and BBQs

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

Third of women harassed at work

Being harassed at work is in the news more than ever before following the recent allegations about Harvey Weinstein, Kevin Spacey, Bill O’Reilly, Morgan Freeman and others.

The trade union Prospect recently carried out a study surveying 7,000 workers (40% female, 60% male) across a range of industries. The women reported that:

• 35% of them had experienced being harassed at work (62% of women aged under 30);
• 27% had received suggestive remarks and sexual jokes;
• 25% had received unwanted comments about their appearance;
• 17% reported unwelcome sexual behaviour ; and
• 14% had suffered unwanted touching, hugging or kissing.

According to the study (which confirms the results of a TUC study two years ago), the victims of sexual harassment are more likely to be under the age of 30, with the suggestion that victims are too intimidated to report sexual harassment to their employer.

Comments made by participants included:

• ‘On the sexual harassment complaint I was made to feel like I was to blame and didn’t feel like I had much support.’
• ‘I have lost a job after bringing up sexual harassment from a manager.’

Prospect said the study showed sexual harassment was ‘endemic  in all parts of the economy’.

This study illustrates that despite this issue rearing its head year after year, female employees are still being harassed at work. Employers can take steps to help reduce sexual harassment in the workplace, including:

1. Extra training for all staff; and
2. Creating a policy making it clear that sexual harassment will not be tolerated and appointing specific individuals to complain to; and
3. Keeping records of reported sexual harassment and doing annual audits so to keep this issue on the radar.

Women report being harassed outside work as well as being harassed at work and so sexual harassment is a societal issue as much as it is a workplace issue. With much of society spending a quarter of  their lives in the workplace, eradicating sexual harassment at work would be a big step towards eradicating it elsewhere.

By Aneesha Ali-Khan

Metropolitan Police Force tries positive discrimination

From time to time we are contacted by journalists seeking background information or a legal angle on a news story, such as this one about positive discrimination. We have written about this topic before. We are always happy to help them because it minimises the misinformation about employment law in the media. Even though they generally call us with little notice to meet their publication deadlines!

One such story recently was that the Metropolitan Police is introducing extra help to minorities with the cost of training in order to promote diversity. It will give new recruits £1000 towards the cost of a certification if they are female or from an ethnic minority, but White entrants and males get only £500. One person’s positive discrimination is another person’s negative discrimination.

There are several different types of unlawful discrimination, including direct, indirect, harassment and victimisation and a couple of others. This is direct discrimination.

There are very limited exceptions when direct sex or direct race discrimination is lawful. The Met is relying on the exception for positive discrimination. This legitimises what would otherwise be unlawful direct sex or race discrimination if all of the following are true.

• The employer believes that minority entrants are not proportionately represented.
• That belief doesn’t have to be right, only one that a reasonable employer would have.
• The employer takes steps to enable or encourage minorities to participate.
• The steps it takes must be ‘proportionate’. This means carefully applying a balancing exercise, taking into account factors such as the size of the diversity gap, the amount of help being given to the minorities, the seriousness of the socio-economic difference and the existence of other, less discriminatory ways of fixing the issue.

It’s natural to want to diversify your workforce, and positive discrimination is probably the only way to do it if you are not getting diverse applications, but those who are being discriminated against might have questions about whether this decision is proportionate; questions such as this:

1. How has the employer arrived at a one-size funding amount? Was it carefully-calculated or just pulled out of the air?
2. How come the funding is the same for both women and ethnic minority candidates? This looks like a broad-brush approach. If women are better- or worse-represented in the Police than candidates with an ethnic minority background, did the Police consider giving them different funding amount?
3. Similarly, is it appropriate to treat all those with a minority background with a broad brush? For example, the Black community might be well-represented whilst Asian staff are less well-represented. But both minorities get the same funding.
4. If other forces follow suit, will the funding be the same as the Met’s, or will it be tailored because other parts of the country have a difference diversity profile?
5. What will a candidate need to do to show that they qualify for the extra funding – is it enough to tick a form, or to honestly identify as such, or to reasonably identify as such? Our understanding (eg from here) is that the Met will rely on self-declared ethnicity data. If so, could this measure and similar measures provide an incentive for more people to self-declare as having minority status in future? Positive discrimination could lead to a ‘tickbox culture’, where the diversity figures start looking better even though the diversity of the workforce doesn’t really change.

Journalists with queries should email us on info@hattonjameslegal.co.uk.

Ian’s dismissal after 36 years

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 Ian’s dismissal after an unfair disciplinary from a well-known company after 36 years of service.

Ian, age 56, was a foreman working on large infrastructure projects. With over 36 years of knowledge within his field, Gurdeep’s dismissal came as a shock.

Ian was issued with a company van to help complete his daily tasks.  As the company owned many vehicles, it had its own fuel pump at the depot, where Ian was the only employee trained and authorised to fuel machinery. An electronic fob was issued to Ian which recorded how much fuel he dispensed from the pump.

The company were well aware that the small tanks they issued could only hold a certain amount and this was not sufficient to last for the working day. Therefore, Ian (thinking proactively) would fuel up several jerry cans to top up the tank whilst out on site. This is precisely why the company issued jerry cans in the first place!

Ian’s employer became aware that Ian was drawing more fuel than the van’s tank’s capacity to hold fuel. This led it to believe that Ian was taking the extra fuel for his own personal use and therefore an investigation was. carried out. Evidence included in the investigation was offered by another employee, Steven, who had a personal vendetta against Ian and wanted him sacked. Other colleagues of Ian stated when they need extra fuel, Ian gave them some of his fuel, showing where the extra fuel went too and was in fact not for Ian’s personal use as alleged.

It is important to remember when an employer is carrying out an investigation, it must be conducted fairly and reasonably. Making a decision after an unfair disciplinary investigation can make any subsequent decisions or action unfair, and leave an employer vulnerable to legal action.

In the appeal, Ian’s employer refused to hear new evidence produced by Ian and his representative. He complained the accusations made were instigated by his manager, who for an unknown reason, took a dislike to him.

Unfortunately, Ian was unfairly dismissed from his job.

We helped Ian to bring a claim of unfair dismissal in the Employment Tribunal on the basis that the employer simply conducted an unfair disciplinary and as a result got the decision wrong.

Image used under CC courtesy of DennisM2

Pre-cancerous conditions are a disability

Cancer has always been a disability for the purposes of disability discrimination under employment law. There are particular conditions that are whitelisted as disabilities under the Equality Act, cancer being one of them.

The Employment Appeal Tribunal (‘EAT’) recently looked at whether a ‘pre-cancerous’ diagnosis is a ‘deemed disability’ under the EA.

Facts:

Mrs Lofty was a café assistant from 2001. In 2014 she noticed a blemish on her left cheek. The hospital told that her biopsy results were consistent with lentigo maligna, cancerous cells that could result in skin cancer.  She signed off work on 17 August 2015 to go through surgery to deal with these cells. In mid-September, she was cleared of any possible cancer. She continued to be signed off work for related health issues and suffering extreme anxiety until 17 December 2015.

First Café reviewed her attendance and dismissed her for failing to attend meetings to discuss her continued absence from work.

Mrs Lofty lodged a tribunal claim for disability discrimination. She argued that her pre-cancer was deemed to be a disability under the Equality Act. The tribunal observed her diagnosis as ‘pre-cancerous’, and so thought Mrs Lofty hadn’t suffered cancer within the meaning of the Equality Act, concluding that she wasn’t disabled.

Mrs Lofty appealed to the EAT.

Decision

The EAT concluded that because Mrs Lofty had cancerous cells in the top layer of her skin, that this was a deemed disability for the purposes of the EA. The EAT commented that Parliament didn’t exclude minor cancers from this protection. The EAT also commented that a diagnosis of pre-cancerous cells may mean something different depending on where the cells are to be found, but that for skin cancer, it is a type of cancer.

Analysis

The EAT’s clarification that pre-cancerous conditions can be recognised as  cancer has potentially expanded the number of people that are protected automatically by the Equality Act. In light of this, employers should be cautious about how they treat employees with pre-cancerous conditions  because this case illustrates that such conditions can, depending on the medical evidence, be recognised as a deemed disability.

By Zahid Reza

Case report: Lofty v Hamis (t/a First Cafe) [2018]

Image used under CC courtesy of bndF1