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
Birmingham’s employment solicitors are watching the case of a teaching assistant who was sacked for complaining about her pupils being shown footage of the 9/11 New York tower attacks.
She felt her 11-12 year olds shouldn’t be watching footage of the towers’ occupants falling to their deaths, which was shown as part of a class on poetry. She was dismissed an hour after raising the issue with her managers.
She has been offered £11,000 to settle her claims for whistleblowing-related unfair dismissal and discrimination but is holding out for an apology at a December 2016 hearing, if the matter doesn’t settle at a November mediation.
After dismissing her, the school allegedly completed an internal safeguarding form that raised concerns about her suitability for a role in teaching. The form also suggested that she had been motivated by her faith when raising the concerns.
For her part, the former employee insists that she was motivated only by concern for the children and to have suggested that her religion was relevant was discriminatory.
The school is one of those named in the so-called trojan horse scandal, which was about Muslim agendas in the management of Birmingham schools.
Hatton James Legal advised two teachers from other trojan horse schools, which treated them badly in 2013-2015. One was a disabled IT teacher who was left on the shelf and not permitted to return to work after an operation. The other was an English teacher treated similarly when she fell pregnant. We secured compensation payments for them substantially more than the £11,000 reportedly offered to the teaching assistant in this case.
Because of its topicality, Birmingham employment solicitors are taking a keen interest in the case.
The school in this case, advised by employment solicitors in Birmingham County Councils legal department, refused to comment while the case was ongoing.
Reporting by Jason HarbourneRead More
We read that multi-claimant employment solicitors Leigh Day are taking a class action against Tesco, who are cutting pay rates for night and weekend shift workers on hourly rates.
The complaint is by workers who are unhappy at pay rates decreasing for weekends, bank holidays and night shifts.
17 employees are involved in the test case to protest against the cut introduced in July. The employment solicitors involved in the case believe that 38,000 members of staff could be affected.
It often comes as a surprise to employees but employers are allowed to reduce pay and conditions as long as they introduce the changes in the right way, which includes proper consultation. Tesco agreed the changes after consultation with union in February. The move was accompanied by a 3% pay rise to staff and a lump sum to those affected. The employees concerned were given 18 months of the difference in their pay as compensation.
However, the main change has been that double time for Sunday and bank holiday shifts becomes time and a half instead.
The employment law issue is that the hourly-paid staff are mostly those over the age of 40 years old. Therefore this could be seen age-discrimination unless it is justified, which is a tough legal test for Tesco to beat.
In a trend that we anticipate will become even stronger after Brexit, retailers are making cuts to staff wages.
It is the longer-serving staff in these businesses who usually suffer the most, said the employment solicitors bringing the case.
The transition payment was equivalent to the loss in pay over the next 18 months. Tesco did not confirm how many workers were affected but said it was a small number.
We hear that Marks & Spencer may be facing similar issues. Recently they reduced the earnings of about 10% of its shop-floor workers by cutting anti-social hours payments.Read More
Tattoos and piercings are more popular than ever. A 2015 study by the British Association of Dermatologists stated that one in five people are tattooed. But what are the employment law implications?
Only a few decades ago tattoos and piercings used to be associated with gangs and delinquencies. Even though the stereotype has now disappeared, discrimination against tattooed or pierced individuals is still present.
Tattoos and piercings are often viewed as a statement of identity. Is there protection from employment law against management decisions that are anti-tattoo or anti-piercing?
At work everyone usually must follow the company dress code. In some artistic fields, tattoos or piercings can increase someone’s chances of being hired, but individuality is not compatible with certain professions. Most companies have strict dress codes which often prohibit visible tattoos or piercings. These could be seen by a client as being unprofessional or even intimidating, which proves that the aforementioned stereotype has not been completely erased. By creating adequate legal protection, the preconceived idea of the aggressive tattooed and pierced criminal could probably disappear.
Canadian Prime Minister Justin Trudeau has a tattoo on his left arm. Even though he covers it up for conventional meetings, the Prime Minister does not hesitate to show his tattooed arm during less formal events. Many people view the politician’s tattoo as a new, youthful, and more modern manner of going about with politics.
In the UK the main employment laws protecting people against discrimination are discrimination law and unfair dismissal law.
Discrimination covers disability and religiosity, among other things. Disability includes those with disfigurements but it does not provide protection for tattooed or pierced workers.
Unfair dismissal and disciplinaries for reasons relating to appearance could fall within the ACAS guidelines on dress code. They state that dress codes should apply equally to men and women. Employers should consult their staff members and reach an agreement that can then be written down. Piercings are slightly different from tattoos as they can be removed more easily. Thus, depending on the type of work, an employer could ask his employee to remove his piercings for safety or policy reasons.
If a tattoo has a religious or cultural significance it could be argued that there is a racial or religious angle. In that case, there is a balancing exercise to be carried out in order to satisfy the ‘indirect discrimination’ test, though this test is really quite employer-friendly. We are not aware of any caselaw on the subject, though.
Many companies have strict dress codes which often prohibit visible tattoos or piercings. These could be seen by the client as being unprofessional or even intimidating, which proves that the stereotype has not been completely erased.
On balance, it is quite hard to imagine a situation where someone would be within their employment law rights to complain about being asked to cover up a tattoo or piercing.
By Lily Wilde
Image used courtesy of Clara , licenced under CCRead More
It has been reported that Argos are paying an extra 80p per hour to their staff on minimum wage as a Christmas bonus on the condition, that they do not take any time off sick from work in the lead-up to the busy Christmas season.
Could such an incentive lead to many employment tribunal cases being taken out against Argos?
Some employment lawyers are pointing out that it could be discriminatory against disabled employees, who are more likely to require time off and lose their entitlement to bonus. On the face of it, this looks like indirect disability discrimination.
Indirect discrimination is applying a “one size fits all” policy to all employees, but that has a greater impact on a particular group, such as the disabled.
Agency workers at Argos’s Basildon depot have been told that they will not benefit from the 80p per hour uplift if they call in sick even once.
Whether this is discriminatory or not depends on whether employers can avail themselves of the “justification defence”. This applies where the practice is in pursuit of a “legitimate aim” (which reducing staff absence clearly is) but also “proportionate” (which means no more discriminatory than necessary). It is this second limb of the test that some employment lawyers believe the scheme will probably fail, because the cost to the employee is an all-or-nothing one, not according to a sliding scale.
We think that the scale doesn’t have to be perfectly linear – so you wouldn’t need to say you lose 1% of the bonus for every 1% of absence. But, equally, the ability to lose 100% of the bonus for 1% of absence is apparently overkill. We would have advised Argos to apply the bonus penalty in, say, windows of 20% or 25%.
The risk is particularly the case for staff members who may be suffering from chronic illnesses. They might see the bonus scheme as not being within the Christmas spirit at all!
Illustration courtesy of Quinn Commendant, licensed under CCRead More
In any workplace, employees will joke around with one other, forming friendships that allow spirited banter. While this is tolerable to many, others may find it to be unacceptable or even discrimination.
At what point does banter cross the line to harassment? Employers often face this question. Sometimes, it is only at the point when an employee raises a formal grievance or even leaves.
An extreme example of harassment in the workplace is Jimmy Savile. Female colleagues reported that they (and others) were harassed in the workplace but were afraid at the time to speak up.
It is natural that once you are comfortable enough around someone the relationship can evolve to comments about physical features, their way of talking and past events. These can be about relationships, it could be of a sexual nature, or about the football team they support.
In predominately male offices, women are subjected to unwanted sexual jokes. A TUC online survey reported that 32% of women had experienced unwelcome jokes of a sexual nature and comments of a sexual nature about body or clothes. More than a third of women who had experienced sexual harassment had also received unwanted sexual advances six times in their lives.
We at Hatton James Legal have seen an Italian employee claiming racial harassment because colleagues watching an England-Italy match ribbed their Italian colleague over his country’s “lazy” performance on the pitch. Although he was sacked for crashing a company lorry, his claim included all sorts of allegations about inappropriate workplace banter that had never been an issue before.
Discrimination law says that workplace banter becomes harassment when it is “unwanted” and any one of the following – “hostile, humiliating, degrading, intimidating or offensive”. This is such a wide definition that you could be forgiven for thinking that almost anything could cross the line. The employee has to prove that it was offensive to both him and to the reasonable person.
Since employees have different opinions as to what acquaints to a joke and harassment, which leaves the question – what can employers do?
Employers should use their handbooks to illustrate what they count as banter and examples of what constitutes harassment. Employees can then have no excuse for not understanding when their behaviour is out of context.
Having a simple word with the employee in question can resolve the matter simply. Employers should not be afraid to apply disciplinary procedures and give warnings as necessary. If the employer has taken all reasonable steps to stop employees harassing each other then they won’t be responsible, but compensation can still be claimed against the colleague.
Employers can only defend themselves against discrimination claims if they can show they take grievances seriously. They may face future tribunal requests for documents showing how they have handled previous complaints. Educating employees on harassment during induction training also provides employers with this defence.Read More