We have read news of a settlement for discrimination by a transgender woman in a Northern Ireland case. The department store Debenhams has paid £9,000 to a woman who complained about transgender discrimination. This happened under the Northern Ireland equivalent of the Equality Act.
Ava Moore, who was born male, applied for the position of temporary sales assistant for the Christmas season at her local branch. She performed well at interview and proved her ability by selling to a customer on the sales floor. Despite this, the interviewer’s mood changed when she disclosed her birth certificate (revealing her birth name and gender).
A few days later, Ms Moore received a rejection but also an anonymous email informing her that the reason was because she was transgender. She complained to The Equality Commission. Debenhams has settled, without admitting liability.
The settlement has, unusually, become public, whereas normally, a settlement for discrimination is kept confidential. We infer that she refused to accept a confidentiality clause and Debenhams had no alternative but to accept.
Despite this (slightly larger than average) settlement for discrimination, a spokesperson for Debenhams said:
“We are an equal opportunities employer, committed to promoting equality and diversity within the business and throughout the sector. Decisions on recruitment, training, promotion, and employment conditions are based solely on personal competence and performance.”
Nevertheless, they admitted that Ms Moore performed well at interview and in interacting with customers, and that she was willing to work the required hours.
Ms Moore said that the rejection “knocked her confidence” and that the job was “perfect” for her.
To avoid tribunal claims, jobs should go to the candidate who have performed best in the recruitment process. Companies with policies and training tend to avoid making this kind of mistake.
By David Liu
Image used under CC courtesy of Tnarik Innael
Under the Equality Act 2010, employers must not treat staff less favourably or harass them (discriminate) because of a “protected characteristic”. One such characteristic is their “religious or philosophical beliefs”. This case report sheds light on what counts as a ‘philosophical belief’ by saying that ethical veganism is a belief that qualifies for protection.
This doesn’t have much caselaw yet, which is why the case is of interest. It is not an appeal decision, so it doesn’t set a precedent. But it is likely to be followed by other tribunals.
If other tribunals follow the judgment, employees who are ‘ethical vegans’ will be protected by the law to the same extent as people who hold religious beliefs.
The Tribunal decided that ‘ethical veganism’ meets a series of tests to merit protection under the Equality Act 2020:
- It deserves respect in a democratic society;
- It is compatible with human dignity; and
- Doesn’t conflict with the fundamental rights of others.
Ethical vegans refuse to wear anything made from animals, such as leather or wool; they don’t use products tested on animals. The case says nothing about ‘dietary vegans’ who eat only plant-based food or those who avoid meat because of the taste. We think the former would be protected but the latter would not.
Jordi Casamitjana, an ethical vegan, was dismissed by his employer, League Against Cruel Sports. He raised concerns with his employer that its pension fund was invested with companies involved in animal testing. When they ignored him, he told his colleagues and was sacked. The case continues, with the employer arguing that it dismissed him for misconduct, not because of his beliefs.
This decision doesn’t surprise us. Tribunals have already said that environmental beliefs qualify for protection. The real question is how far future cases will go. Will they extend rights to those with view on other contentious areas, of varying importance such as Brexit, humanism, left-handed equality, treatment of the homeless, the BBC licence fee.
A wider interpretation means that employers will face more claims from argumentative employees unhappy with being told not to share their views in the office.
By David Liu
Image used under CC courtesy of Stuart Spivack
Dress codes at work have been in the news quite a bit recently. See our other articles on the topic here, here and here. And also here. We’ve seen headlines such as Japan ban on glasses for women at work, Goldman Sachs relaxes dress code, and Japan’s labour minister says high heels at work are ‘necessary’.
Anothe recent report tells us that a Russian company gave bonuses to encourage its female employees to exchange their trousers for dresses and skirts at work – link.
This unsurprisingly attracted criticism and offence at the insult to female employees. The feeling is that the reward is not connected to the professional interests of the company. Men might also complain that the ‘trouser bonus’ is unfair as it excludes them.
Avoiding this type of clanger may seem obvious to employers but the intricacies of having a workable and non-discriminatory dress code can still cause upset in UK workplaces. Cases have been well-publicised about dress codes going too far.
Does your organisation have a dress code? Here is a checklist of factors to consider.
- Health and safety – is particular clothing linked directly to the need for keeping the employee safe?
- Product safety and quality – is particular clothing linked directly to the need to keep the product safe (eg, food) or to protect the quality of the product?
- Company image – is there a need to portray a particular image to the users of your product or services, such as a smart appearance for professional job roles?
- Marketing – is there a need to promote a brand image?
- Conformity – is a uniform part of the culture of the organisation to promote equality and practicality?
Dress codes at work are not unlawful but you should guard against imposing different standards on different genders which are not justifiable. For example, employers can ask employees of both sexes to dress smartly but should avoid gender specific requirements such as high heels for women. Don’t forget of course that employees with disabilities may not be able to comply with all requirements (we’ve heard of someone who couldn’t wear a tie due to neck surgery). Employees with specific religious beliefs may prefer to dress in accordance with their faith, which should be allowed unless there is a good reason not to.
Asking female staff to dress in a provocative manner is an obvious no-no in most industries but many employers permit dressing down in hot weather for example.
Dress codes for men and women do not have to be identical but consultation with staff and careful implementation is the key to success. Bonuses are best left for achievements at work not how employees look!
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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
- Direct (unequal treatment because of a disability)
- Discrimination ‘arising from’ (unequal treatment because of a related reason, eg absence)
- Indirect (a one-size-fits-all policy that is harsher on the disabled)
- Harassment (hostility because of a disability)
- Not making reasonable adjustments for a disability
- 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
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.
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:
- Avoiding social media communications that could damage reputation or business interests;
- A ban on using social media to disparage the business, its staff or contacts;
- A ban on sensitive business information (i.e. business performance), jeopardising trade secrets, confidential information and intellectual property; and
- 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.
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
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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):
- 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).
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.
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.
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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.
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
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.
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.
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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.
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.
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
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