A discrimination tribunal case earlier this month made an important decision on the ‘burden of proof’ provisions in the Equality Act 2010. These give the benefit of the doubt to the claimant in certain parts of discrimination claims and they are a cornerstone of the discrimination regime.
The claimant in this case was a postman. He had graduate and post-graduate level qualifications in IT and had applied unsuccessfully for over 30 IT-related jobs within the Royal Mail. He believed that the rejections were due to a case of direct discrimination on the grounds of race.
The burden of proof part of the Equality Act provides that if there are facts which suggest discrimination (in the absence of any other explanation) then it becomes for the respondent to prove that it did what it did because of non-discriminatory reasons.
The explanatory notes to the Act say “the burden of proving his or her case starts with the claimant. Once the claimant has established sufficient facts, which in the absence of any other explanation point to a breach having occurred, the burden shifts to the respondent to show that he or she did not breach the provisions of the Act”. The Act itself says that the burden in a discrimination tribunal case passes “if there are facts from which the tribunal could decide, in the absence of any other explanation, that discrimination has occurred”.
The Employment Appeal Tribunal (EAT) held that the Employment Tribunals have been getting the law wrong since 2010. When this happens at the employment tribunal, the parties have to get a new ruling from the employment tribunal, which sometimes means another trial. Tribunals have been relying on a two-stage test from the previous case of Igen v Wong which was decided under previous discrimination legislation. Employment solicitors have treated this as sound law for many years, even after the Equality Act regime took over.
The EAT acknowledged that s136(2) is clear and does not require the claimant to prove anything at the beginning. Instead, the tribunal must consider all the evidence, from all sources, so as to make a decision on the facts ‘as a whole’. These sources could be the documents available at trial, witness evidence, well-known facts or common sense inferences, even if none of the lawyers in the case thought it was important.
So, it is probably no longer sensible to talk about the burden of proof in a discrimination tribunal case being the claimant’s in the first instance.
The EAT said that an effect of this case is that submissions of no case to answer (i.e that the claimant has failed to get over the first hurdle by the half-way point of the trial) are now effectively a thing of the past. This is because what the respondent says also feeds into the question of whether the claimant has discharged the ‘burden of proof’. Employers should now be even more careful to call relevant evidence when defending discrimination claims. In this case, the respondent had not volunteered any evidence about the race or national origins of the successful job applicants. Nor had it brought the recruiting managers as witnesses. So it was not in a good position to defend the claim.
The logic behind the decision results in this case being an important authority on how to correctly adhere to s136(2) which plays a vital role at the heart of many discrimination cases. This outcome is solely because the wording of the Equality Act 2010 is different from what the old legislation used to say. We don’t think that this difference was intended by the House of Commons when they passed the Equality Act.
This decision could ensure that future tribunals place a responsibility on the respondent to give evidence in discrimination tribunal cases, which will no doubt give some claimants the edge.
Case report: Efobi v Royal Mail Group Ltd
By Ryan Wheatley
From time to time we will tell you about a Birmingham employment law case we have recently dealt with. This is the story of Jason, a factory worker, and his settlement agreement that followed age discrimination.
Jason, 64 years old, was a production controller in a clothing factory.
Jason was in charge of cutting textiles which produced garments and managing the cutting room operations. Over the course of one year, his employer removed parts of his role, accusing him of not doing his job properly (which wasn’t the case). Jason was asked on several occasions whether he was planning to retire. He wasn’t. Instead of retiring, he had planned to reduce his hours to three days a week on reaching 65. the company have stated they were enquiring as they would need to have a sufficient amount of time to employee a replacement.
The employer had said that they were unsure whether this was going to be possible due to lack of work for Jason and they had asked whether he would reduce his hours to two days a week instead. It was implied that if he didn’t agree to working two days a week, an “alternative route” would be followed. He thought that this was an implicit threat to manage him out of the business.
The employer demoted him, told a client he was on his way out and this caused him a lot of anxiety.
Jason put in a flexible working request when he reached 65, declining the offer to work only two days a week. Out of the blue the employer held a ‘settlement meeting’ with him, asking him to leave and take a £3,000 pay-off.
He felt that this may be cause to resign and claim constructive dismissal, but our page on settlement agreements to see why this might not have been the case. But we advised him that because it was linked to his age, it might be an act of age discrimination.
On our advice, Jason raised a grievance complaining about how he had been treated, claiming he had been forced out of work due his employer’s assumptions about what should happen to employees over 65. This is age discrimination. There is no such thing as forced retirement any more. The grievance was heard and Jason was told that an investigation would be carried out. In the meantime, the employer denied his flexible working request.
Jason took legal action and we wrote to the business accusing them of discriminating. The grievance outcome denied all his complaints, which is usual.
Unfortunately, Jason fell at home whilst gardening due to lack of concentration as a result of being filled with worry over his work situation and was unable to work out his notice.
We helped Jason to bring a claim of unfair constructive dismissal, age-related harassment and age-related discrimination and victimisation. We took the claim to a hearing and the other side settled on the day of the trial for £25,000 to cover his loss of income, personal injury and injury to feelings for age discrimination. Ironically, the matter was tied up with a settlement agreement.
By Emma Bonehill
Image used under cc courtesy of Senorhorst JahnsenRead More
A construction firm named The Mears Group (‘Mears’) has created a policy banning its workers from having beards on the grounds of health and safety, without heed to potential claims of sex or religious discrimination.
Mears (a construction firm) said that this policy was introduced so that workers can ‘wear dust masks effectively’. Workers must be clean shaven, or at least their beard not ‘so long that it hinders the correct fitting of dust masks’.
This decision has been criticised by Unite. They said: “The arrogance of Mears is hair-raising. This is a highly delicate issue, which has huge cultural, religious and personal issues and where sensitivity should be the watchword. Instead, members have been handed a decree from on high.
“This is clearly a case of Mears going for the cheapest option and amounts to penny-pinching stupidity. Other forms of masks are available and these should be offered to existing workers. Unite will always put the safety of our members first. Creating hhuge resentment and anger among your workforce is never the way forward. Mears needs to withdraw this decree and enter into a proper consultation with Unite and the workforce.”
Unite have correctly alluded to the risk of indirect discrimination on the part of Mears. This is because for some religions, beards have a particular significance. Mears have said that they will make exceptions to this policy for medical or religious reasons, but this may not completely mitigate the risk of indirect religious discrimination since employees may feel embarrassed to ask for dispensation. We believe that there is a high risk of this policy amounting to a policy, criterion or practice which indirectly discriminates against a group of people on the grounds religion or belief.
Santa Claus, perhaps the most famous bearded worker, would not accept such a policy, we are sure.
Businesses of all types must be mindful of indirect discrimination when creating any policy/procedure which applies to all workers or a group of them. This is because indirect discrimination is typically less obvious and so is easily committed without a thorough analysis of any proposed policy/procedure.
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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 Harry, his heart condition and his disciplinary.
We helped Harry to get his employer to remove a first written warning following a disciplinary meeting.
Harry works for a construction company and has over three years’ service. Harry also has a heart condition which he disclosed to his employer at the start of his employment. He is a forklift driver.
One day, Harry was having chest pains and suffering from a shortness of breath. He told his line manager, who just told him to get back to work. He did this but was suffering pain throughout his shift. At the end of his shift, Harry told his line manager that he felt he needed to go to hospital. At this point, the company started taking him seriously. Two colleagues from health & safety told Harry that he could either go to the hospital himself or someone from the company could take him.
Harry had lost confidence in his employer’s ability to deal with the situation, so said he would go on his own. Upon arriving at the hospital, the doctors were very concerned because they could not feel Harry’s heartbeat. Once Harry had informed them of his heart condition, the hospital did a series of tests the next day and concluded that he was fine but that the symptoms could be life-threatening in the future.
Despite knowing where Harry had been on the day of the incident and the next day, the employer took the absences into account in giving him a warning for taking too much time off sick. After an investigation and disciplinary hearing, Harry was given a first written warning which was to stay on his record for 12 months.
We assisted Harry in his appeal against the disciplinary sanction and helped him to lodge a grievance. This did the trick because the employer then removed the sanction completely, leaving Harry with a clean disciplinary record.
Employers should always be aware that a disciplinary process must be fair and impartial for employees with more than two years’ service. This is because an unreasonable decision can breach the implied term of ‘trust and confidence between an employer and employee’, which can allow eligible employees (with two years’ continuous service) to claim constructive unfair dismissal. Those with less than two years’ service may rely on their disability rights under the Equality Act, including the right to reasonable adjustments to the disciplinary process. An unreasonable decision can support a discrimination claim. Therefore, employers should always deliberate carefully as to what is a reasonable decision based on the information obtained throughout the disciplinary process.
Harry was satisfied with the outcome and because the employer reversed its decision on appeal, he was willing to still work for them. His heart condition is not currently causing him any problems.
By Zahid Reza
Image used under CC courtesy of AJC
Employees may be dismissed with no religious discrimination if they breach a uniform policy that bans headscarves (and other religious symbols), says the European Court of Justice (ECJ). This is the court to which employees and employers can currently appeal tribunal decisions after exhausting the UK courts.
This was a ruling in the conjoined cases of a Belgian receptionist who was dismissed by G4 for breaching the union-agreed dress code after she started wearing a headscarf, and of a French IT consultant who was told to remove her scarf after a client complained, and then dismissed when she refused.
These religious discrimination cases have taken eight years to work their way to the top of the legal system.
In France and Belgium, more than the UK, there is a strong public feeling that religious displays are not a cultural and historical fit.
Until now, we have advised employer clients that a ‘one size fits all’ policy (like a dress code that bans religious displays or head coverings) is likely to be indirect religious discrimination unless there is a very good reason for it. And that there is unlikely to be a good reason.
Indirect religious discrimination means it affects certain groups (eg Muslims, Jews, Sikkhs) more than others. Good reason means that no less discriminatory way exists to achieve what you reasonably want to achieve. We have advised that a teacher may validly be told not to cover her face, because that can impair the sight of lips and sound of the voice which are crucial for teaching. But we wouldn’t have advised it in the case of a secretary or IT worker.
Understanding the decision
This case shows that the devil is in the detail. It was a question about what constitutes the employer’s exception – the ‘good reason’ mentioned above. It is now considered a ‘good reason’ if the employer wants to “project an image of neutrality, notably where the employee is client-facing”.
There is currently (the full judgment is not yet available) no word on what “neutrality” means. Our view is that the court may be referring to religious neutrality. There is no word yet on why it might be reasonable to want to achieve this, as opposed to, say, having a policy that all people of all religions and none are to be treated the same, regardless of what they choose to wear.
To avoid confusion, employees can still be religious and pray in their own time, but can be asked to keep it hidden from clients. We don’t know if they can be asked to keep it hidden from colleagues. The employer must first have a religion-neutral policy and consider whether it is necessary for the employee to deal with clients.
The European Forum of Muslim Women said they “strongly condemn and deplore the decision”, saying “The backing of this headscarf ban by the highest court of justice in Europe is a serious threat to the principles of equality, justice, and freedoms that EU must uphold.”
Their religious discrimination cases now go back to the national courts to rule on the cases having taken further evidence on questions identified by the ECJ, such as whether the employees could have been made non-client-facing.
The rulings of the ECJ are currently binding on the UK. They won’t be from 2009 because of Brexit. We think it likely that the UK courts and tribunals will continue to apply the ECJ’s rulings, albeit maybe on a haphazard basis, so that the future of employment law will become even harder to predict.
Case report: Bougnaoui and ADDHRead More
Pay discrimination is slowing down – womens pay is catching up with the pay of men, albeit at a snails pace. Under current social policy (European in origin but that won’t change after Brexit), all employees should be treated and paid the same, without pay discrimination. However, the gender pay gap means that woman earn less than men throughout their career. The Fawcett Society argues that the main reason for gender inequality in the workplace is that women’s work is not valued. A major part of this because is because women work in sectors that require less skills, e.g. childcare and administrative work. The current gap for full time workers is 13.9%. We have seen changing attitudes towards equal pay and the introduction of the living wage, now £7.20 an hour, However, there is higher proportion of women working full-time in occupations such as care work, cleaning, administrative and reception work, which pays less and there is poor career progression, all of which leads to pay discrimination. Although the gender pay gap is at a low, the rate has slowed down. The hourly pay of full-time work for women is now 9.4% less than that earned by men. In 2015 it was 9.6% and 17.4% in 1997 according to Office for National Statistics. The policies of individual employers in regards to equal pay might have had an impact, as might government initiatives to make companies reveal the number of men and women in each pay range. The glass ceiling operates as a barrier for women to access higher jobs and salary and as more women work in lower-paid jobs than men, this barrier is still in place. In addition, the cost of childcare has risen under the current government. From 2018, businesses that employ more than 250 workers must publish how much staff are paid, broken down by sex. Following David Cameron’s vow to “end the gender pay gap in a generation“, Theresa May has promised to create a “Britain that works for everyone” and in particular to tackle pay discrimination.
By Jaspreet Singh
Image used under CC courtesy of Katrina ElsiRead More
You may have seen this BBC News article about a women-only Cambodian taxi service ‘Moto Girls’ and we bring you the employment law implications of similar businesses in UK employment law.
Female members of the public face greater risk of violence and other crime both inside and outside the home. This is why there are women-only train carriages in Japan, India, Egypt, Iran, Brazil, Mexico, Indonesia, the Philippines, Malaysia, and the UAE.
“Tourists like girls who drive slow, not weave in and out of traffic” said a hotel customer of Moto Girls.
Of courses, this mixes up driving skills with gender, which is the definition of prejudice.
Nevertheless, 30% of people would rather hire a female tradesman (ahem) if they had the choice, according to an insurer’s survey. The reasons given ranged from the feeling that women have better attention to detail (66% of respondents) to feeling safer around them (54%), punctuality (46%) , better customer service (45%) and better multi-tasking (42%).
This is a funny form of ‘egalitarian’ sexism. 80% of people thought that men could do just a good job as women in traditionally female roles such as child caring, beauty or cleaning.
But businesses are not allowed to choose the gender of their employees just because the client base prefers it. If society has a particular expectation, employment law is there to change that expectation.
Because sex discrimination laws prevent recruitment policies that only accept one sex or the other, gender-specific companies are rare, as the removal company Van Girls found out when they failed to secure Dragon’s Den funding. “Our largest demographic is couples who are expecting a baby very soon or who have young children. But there is a real mixture. Men, women, couples, the elderly or their children and the LGBT community all seem to like the idea“, says its business owner.
It would be against employment law to only employ women removers, so she can’t admit that. She can only say that she happens not to have any women removers and that she employs a male mechanic and accountant.
Skating carefully around the employment law implications, she says “Our brand name represents how the company started and what it will always be able to offer, but doesn’t mean that men who wanted to work for Van Girls wouldn’t be given a fair chance to form part of a mixed crew, if they matched our ethos and fulfilled our selection criteria“.
Employment lawyers have little experience of this type of practice, since employment law only allows specific gendering of employees when it is a necessary part of the job, which judges construe very narrowly. An acting role for a female character would certainly benefit from the exception. And we have seen it used (but not tested in court) by services counselling troubled children, who may not want to speak to a man/woman for understandable reasons. We think that it is overwhelmingly likely that a would-be male bra-fitter would not be given legal protection if rejected for a job.
This is despite the fact that the legal test of what is a “necessary part of the job” is really just another way of saying “in what areas should employment law let customer preference win out?“. We know that men can play women’s roles if allowed – see Widow Twankee(!) but employment law agrees that a director should not have to ask an audience to suspend disbelief in this way.
Likewise, it is only customer embarrassment and the social custom of sex-segregated privacy about our bodies that makes a male less wanted by customers as a bra-fitter. Judges choose to allow this to continue rather than to use employment law as a tool to change this societal expectation, whilst denying the tool to, say, a golf club that wants to remain men-only because of male golfers’ preferences.Read More
Diversity at the workplace is a preoccupying issue for discrimination lawyers. The law recognises that certain groups of people are discriminated against because of their gender, disability, sexual orientation, religion or ethnicity.
In 2010 the Equality Act confirmed the legality of positive action for employers, while making positive discrimination unlawful. What is the difference? Positive action aims to erase inequalities in employment and promote diversity. However, those who disapprove of positive discrimination argue that to be equal, employers should be blind to all characteristics that could potentially lead to discrimination, and hire their employees solely based on their ability to do the work. The problem is that, even if all candidates are equally qualified and experience, the ‘blind’ approach will do nothing to redress an imbalance of minorities in the workplace
There is a fine line between positive action and positive discrimination, as discrimination lawyers know. Positive discrimination is employing individuals solely based on their under-represented social group. For example, setting out to hire Asians, regardless of skills or experience in order to improve diversity. Only disabled people can benefit from positive discrimination. To set out to hire, say, lesbians or younger men would be unlawful.
Positive discrimination is employing individuals solely based on their under-represented social group. For example, setting out to hire Asians, regardless of skills or experience in order to improve diversity. Only disabled people can benefit from positive discrimination. To set out to hire, say, lesbians or younger men would be unlawful.
On the other hand, positive action is allowed. Employers are permitted to favour one out of a number of equally adequate candidates on the basis of their protected status. However doing so is not mandatory and there is a perception that doing it, even for laudable reasons, would get employers into trouble if candidates found out. We have never seen, for example, a rejection letter that says ‘We are sorry not to pursue your application as there were women of child-bearing age who were just as qualified and we wish to hire on of them to improve our diversity statistics’. Nor would any sane employer record that reasoning in an internal memo, even though the law would protect them. To do so would just invite litigation on the basis that the disappointed candidate was better suited for the job and discriminated against.
So why are quotas in the workplace unlawful? It can be explained by the fact that our society is meritocratic, therefore the most deserving applicant should be hired. The term ‘as qualified’ can be ambiguous. For example, two candidates could have very different profiles: one could have no work experience but a degree, whereas his competitor could have a lot of work experience but no qualification.
One reason why an employer might want to have a more diverse workforce is that it is a great defence when faced with a discrimination claim. It is harder to complain that your employer is institutionally racist if all races are well-represented in the workforce
Employers should always be objective, set out specific and unambiguous criteria for the selection of their candidates, and finally, understand which groups are under-represented and aim to redress this balance with positive action, albeit that discrimination lawyers advise them not be too transparent about doing it.
By Lily Wilde
Image used under CC courtesy of DryHundredFearRead 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 Dav.
Dav drove HGVs for 15 years with the same company. A few years ago he started suffering health problems and his employer re-assigned him temporarily to a different role.
He was diagnosed with sleep apnoea, a condition that interrupts breathing during sleep. Left untreated, this can cause the patient to fall asleep during the day. Once the diagnosis was made, his doctors notified DVLA, who suspended his driving licence until it could be treated. He was treated with a Continuous Positive Airway Pressure (CPAP) machine, to be used whilst he was sleeping. After his doctors signed off that it was working, he was allowed to resume driving by the DVLA.
A couple of years later, at a routine hospital review, he learned that he had been using the machine slightly wrongly and again the doctors told the DVLA.
However, this time, his employer had had enough. He was sacked on the spot.
Dav searched for employment solicitors in Birmingham. Employment law was on his side. It is unfair dismissal to sack someone with more than two years’ service without following a procedure. Sacking someone on the spot is no procedure at all and in his case that would lead to £5k in compensation.
But he could also expect to receive a large award / settlement if he could show that dismissal was also unfair in practice. This would be the case if the decision to dismiss would have been the same, even after a proper procedure. In that case he could expect to obtain compensation for a reasonable period of lost income.
And because sleep apnoea is a medical condition that qualifies as a disability, the actions of the employer drove a coach and horses through the Equality Act’s employment law protections for the disabled, amounting to discrimination. The dismissal was discrimination for a reason relating to his disability, that reason being the suspension of his licence.
He came to us for employment law advice and we offered to take his case on a no-win, no-fee agreement, which would entitle him to legal advice all the way to trial at no cost if it was unsuccessful.
The employer’s only real argument was that without his licence, if Dav had no income if wasn’t because he was dismissed (the employer’s fault) but because couldn’t get a new job with his medical condition (not the employer’s fault). They would still have to pay compensation but not as much. So Dav worked very hard to chase the hospital and DVLA to get a clean bill of health and his licence back, which took away this argument.
We had to issue a claim to do it but we secured a settlement for just under £20k. The employer learned a valuable lesson that day.
Our clients agree to the use of their stories in this Birmingham employment law series but names are changed for anonymity.
Image courtesy of Sally Butcher, used under CC
A much-talked-about type of sex discrimination is the fact that women earn about 20% less than men. We’ve written about a different wage gap recently but today we saw that Bloomberg has reported that there’s a wage gap for bisexuals, too.
According to an American study bisexual women earn between 7% and 28% less than straight women, and the figures for bisexual men are 11% to 19% less than their straight colleagues.
The gender pay gap results from factors like working fewer hours and needing a more flexible schedule because of childcare. But these reasons don’t apply to bisexual workers any more than they do for the general population.
The author says that when you take into account the effects of motherhood, fatherhood and marriage the wage gap between lesbian and heterosexual women falls away.
But these factors are less prevalent among bisexuals, meaning that the findings are suggestive of discrimination.
The author says he found in other research that bisexuals are more likely to be perceived as immature, dishonest, and incompetent than straight and gay counterparts.
That means that bisexual stereotyping may be having an effect on bisexuals’ pay.
Bisexual stereotyping includes phrases like “greedy”, “indecisive”, “uncommitted”, “undeveloped”, which bisexuals find naturally irritating. Even many people who champion gay equality will express these views, meaning that bisexuals can fear coming out.
This is an interesting study and though we have been involved in several cases to do with sexuality discrimination we have never seen a case involving bisexuality. Bisexuals should remember that being taunted for being straight or for being gay is just as much sexuality discrimination as harassment on the basis of being bisexual.
We would love to be able to help a client with a sexual orientation discrimination client; they are interesting cases and bringing them can make a real difference to those involved.
By Jason Harbourne
Image licensed under CC, used courtesy of HTorbak HopperRead More