There has been much documented about dealing with mental health (and avoiding mental health discrimination) in the workplace. The 2017 Mental Health at Work Report revealed that despite improvements, a lot of work still needs to be done, in particular to:
(1) encourage employees to talk about mental health issues with their employer; and
(2) improve the mental health training of managers.
Although clearly improvements in dealing with mental health in the workplace will provide more protection to employees who have mental health issues, this article investigates whether or not the law could do more to provide protection to employees who suffer from mental illnesses.
As it stands an individual isn’t protected by the law for ‘substance abuse’, even if the substance abuse is a manifestation of a mental illness. Discrimination law does not protect the employee who is addicted to anti-depressants for example, or self-medicating with alcohol. The Royal College of Psychiatrists has said:
“mental illness may lead someone to abuse substances. They may want to block out their symptoms or the side-effects of medication. They may have difficulties in sleeping, feel lonely or simply wish to boost their self-confidence”.
The charity Rethink, says:
“Some people use them to try and deal with their symptoms. This is called self-medication”.
Perhaps the law should intervene and provide protection to those who turn to substance abuse to deal with a mental illness that is legally recognised as a disability. A possible intervention could be to give these individuals access to the ‘discrimination arising from disability’ claim. This could force employers to ‘deal’ with the mental illness, rather than dismiss (on the grounds of gross misconduct) or sanction an employee as a consequence of the substance abuse, that arose from the mental illness.
Even if the above ‘possible’ intervention doesn’t suit, one could argue that the law should better recognise mental health discrimination in light of the clear correlation between mental illness and substance abuse, so as to protect those with legally-recognised mental disabilities abusing substances.
By Zahid Reza
Image used under CC courtesy of KellyB.Read More
Chris Kirkland realised the dream of millions of youngsters in playing football at the highest level for his country (England), and representing great domestic clubs like Liverpool FC and Wigan Athletic. However he has recently opened up about his battle with depression whilst he was playing football, which ultimately led to his retirement after he left Bury FC before the 2016-17 season began.
Chris explained that his battle with depression started when he left Wigan Athletic for Sheffield Wednesday FC (because the football manager at the time expressed that Chris was not in his plans for the First Team). Chris says that he never wanted to leave Wigan Athletic.
Chris encapsulated his struggle with depression when he described having panic attacks and anxieties about mundane things such as traffic.
‘I didn’t want to do anything. I wanted to shut myself off. My head was just… I couldn’t think straight. I couldn’t wait to get to sleep at night to have a little bit of clear mind. But when I woke up in the morning, it all started again’.
Sheffield Wednesday were unbelievable. They came up with a routine’.
This story highlights how difficult mental conditions can be for employees to deal with, and also illuminates the reluctance employees may have in disclosing this information to employers. It also highlights that mental health can affect anyone, including highly coveted and successful footballers like Chris.
Employers should be aware that the legal definition of disability takes into account a ‘mental impairment’, as well as a physical one. Therefore if employers do not treat these employees with care, there is a risk of disability discrimination. Employers must be aware that just because they do not know, does not exempt them from liability for disability discrimination if they ‘should have known’ about the employee’s mental disability.
Therefore tips for employers to lower their chances of liability for disability discrimination include:
- Providing a medical questionnaire for employees when they start employment, giving them an opportunity to notify their employer of any illnesses.
- A positive working environment may encourage employees to be more forthcoming to employers with any mental illnesses, allowing employers to deal with them effectively.
- Another more obvious tip would be to provide adequate training for line managers so they can be better at detecting and handling mental illness (the Mental Health at Work Report 2017 highlighted that only 24% of line managers are trained in mental health).
There is no doubt that awareness of mental health is improving, and experiences like that of Chris only highlight how seriously employers should take mental health.
By Zahid Reza
Image used under CC courtesy of Tyler YeoRead More
The topic of sexual harassment at work recently hit the headlines after the allegations against producer Harvey Weinstein and actor Kevin Spacey.
The publication of some dramatic statistics suggests that sexual harassment at work is a subject that hasn’t been addressed in depth.
Half of women in the UK have been victims of sexual harassment at work. However, this problem does not only concern women, as one in five men has experienced sexual harassment at his workplace. How can such a worldwide problem not have been seriously addressed before? A possible explanation to this lack of attention resides in the fact that the number of victims who report sexual harassment at work is very low. A research conducted in 2016 showed that victims do not report sexual harassment at work by fear of embarrassment (20%), or that they would not be taken seriously (24%),) and finally, that reporting it would affect their relationships at work (28%).
The Equality Act 2010 offers protection to employees and independent contractors. Sexual harassment is when “A engages in unwanted conduct […] and the conduct has the purpose or effect of violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B“.
Sexual harassment can be verbal and/or physical. Inappropriate comments or touching, sexually explicit jokes by email or persistent requests for dates are examples of sexual harassment. Additionally, unwanted conduct related to the employee’s gender, such as criticising an employee’s childcare arrangement, is also considered to be sexual harassment. Finally, an employee is victim of sexual harassment if he/she is treated less favourably after refusing sexual advances or being victim of them.
Several actions can be taken to rectify the situation. The first step is to inform a person in a position of authority by making a note in writing.
The employer should then invite the employee to a grievance meeting and provide an outcome within a reasonable time.
A claim would have to be started within three months after the incident. Finally, it is crucial to gather evidence by writing down the times and dates during which the inappropriate behaviour took place, along with finding colleagues who have witnessed it.
An employer can be held liable for the actions of an employee, including sexual harassment. In order to prevent this, the employer can show that it took reasonable steps to prevent sexual harassment. This is done by having an anti-harassment policy, undertaking equal opportunity training and showing no tolerance when disciplining harassers.
Sexual harassment can render the working environment intolerable and these claims should always be treated very seriously. The law protecting victims of sexual harassment exists, however statistics have shown that denouncing sexual harassment can be difficult, especially when one’s job is at stake. Following the recent Hollywood allegations , women have started sharing their experiences and a real debate concerning sexual harassment at work has been started.
Hopefully, the current controversy will encourage both male and female employees to speak out and exercise their legal rights when sexual harassment occurs.
By Lily Wilde
Image used under CC courtesy of DollenRead More
Before December 2002, there were no clear guidelines for the amount of compensation to be given for injury to feelings in discrimination cases. This question was always left to the tribunals and courts to provide guidance.
In the case of Vento v Chief Constable of West Yorkshire Police (Vento), the Court of Appeal set clear guidelines for the amount of compensation to be given in injury to feelings and set out three bands of potential awards for compensation in discrimination cases. The numbers in these guidelines were then increased by another case and the existing position (soon to be changed) is:
- Lower band (less serious cases) – £660 – £6,600
- Middle band (medium-length periods of discrimiantion)- £6600 – £19,800
- Top band – (long sustained periods of touching and harassment) £19,800 – £33,000
Until now, even a minor sexist comment would be valued at £660 and no case was worth more than £33,000 in injury to feelings.
A 2017 judicial consultation has recommended an increase to the Vento bands.
The consultation concluded that as of 11 September 2017, the following bands shall take effect:
- Lower Band (less serious cases): £800 to £8,400
- Middle Band: £8,400 to £25,200
- Upper Band (the most serious cases): £25,200 to £42,000
- Exceptional Cases: Over £42,000
It shall stay in the ET’s discretion which band applies to each case and where in the band the appropriate award should fall.
In light of the latest increases, employers should be extra vigilant about discrimination as they may end up having to pay more in ‘injury to feelings’ if found guilty of this. They may wish to review their insurance policies. Also as the employment tribunal fees have recently been scrapped, this only increases the chance of employers being subject to a discrimination claim (to which they may have to pay more in compensation in discrimination cases as a result) if they are not careful.
By Matthew Wheatley
The ‘Dying to Work Charter’ (Charter) is a voluntary charter which lays down guidance for employers in how to support workers with a terminal illness at work.
The TUC wants terminal illness to be recognised as a ‘protected characteristic’. Their idea is for terminally ill workers to enjoy a ‘protected period’ where they cannot be dismissed as a result of their condition. Royal Mail is the most recent employer to sign up to the Charter, meaning that now over 500,000 workers are now covered by this Charter.
Frances O’Grady, TUC General Secretary, said:
“Your job should be the least of your worries when you get a terminal diagnosis. Royal Mail has shown real leadership in this area, working with unions like the CWU to guarantee fair treatment for terminally-ill workers. Over half a million workers are now covered the Dying to Work charter, and we expect more employers to commit in the coming months.”
Dr Shaun Davis, Royal Mail Group Global Director of Safety, Health, Wellbeing & Sustainability, said:
“Everyone experiences terminal illness in a unique way, and at Royal Mail we want to ensure that any of our people diagnosed with such an illness is supported at work through a tailored and flexible approach. Signing up to the Dying to Work Charter builds on the policies and guides we already have in place to help employees, and their direct families, if they receive such a diagnosis.”
The current legal position for terminally ill workers is that some employers will expect them to continue working after a diagnosis. Some will dismiss after what they consider to be a reasonable period of absence; others will offer early ill-health retirement. We are aware of a case where Sainsbury’s gave £8,000 to an employee with a diagnosis of bone cancer and a 2 year prognosis, although it had no legal entitlement to do so This helped her to take time to deal with the diagnosis and put her affairs in order.
The TUC have not added any detail as to how long the protected period would be. Determining how long a terminally ill worker would be protected before an employer can dismiss may be seen as more of a moral question. This would require balancing the worker’s interest of support and protection with the employer’s interest in recruiting a suitable replacement so to maintain the smooth running of their business.
Additionally, if terminal illness was to be a protected characteristic it is likely that many workers bringing a claim will die whilst doing so. In that case, the law would provide that the family of the employee bringing a ‘terminal illness at work claim can collect any settlement or compensation.
The TUC’s idea would not be good for employers because introducing another protected characteristic would increase the number of claims. This, coupled with the recent scrapping of employment tribunal fees could result in employers dealing with many more tribunal claims from their workforce.
It will be fascinating to see whether more employers join the Charter, because if they do then this will only increase the chances of the TUC’s idea coming to fruition.
By Zahid Reza, Employment Paralegal
Image used under CC courtesy of Howard LakeRead More
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.
Image used courtesy of Bailiwick StudiosRead 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 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