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
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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
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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!
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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
Breastfeeding at work is a controversial subject in this country, even among employment lawyers.
In Iceland, an MP recently breastfed her child while giving a speech in the chamber, and in Spain an MP did the same earlier this year, the issue is universal. However, most women do not have a choice: they have to go to work and also feed their babies. So how does the law support them?
In many countries, like France or the Netherlands, the law supports women who breastfeed in public and at work quite heavily.
UK law does not have specific, straight-forward legislation clearly stating the breastfeeding rights of nursing women. However, some rules do exist.
An European directive provided a set of guidelines on the matter. It led to UK regulations ensuring that breastfeeding women must have suitable facilities to rest within six months after the child’s birth. The term ‟suitable facilities” is not defined, but it can be assumed that the toilets cannot be considered ‟suitable”.
A pregnant employee should write to her employer declaring that she wishes to breastfeed at work. Her employer must then conduct a risk assessment. The Health and Safety Executive recommends that it is good practice for employers to provide a private, healthy and safe environment for breastfeeding mothers to express and store milk.
All employees have the right to request flexible working. Breastfeeding mothers should ask for flexible working hours, arranged around their breastfeeding needs.
Unfortunately there is little case law on the matter in England and Wales, but and Irish case of Squillaci is an example of a tribunal finding in favour of the mother. The judge found that the employee had suffered sex discrimination as her employer refused to let her continue to breastfeed her child for more than six months, despite the fact that the child’s health required breastfeeding for a longer period.
Because of the sexual role of breasts in society, there is always the risk for sexual harassment from colleagues. Equality laws mean that employers should be on the alert for this, as we describe elsewhere.
By Lily Wilde
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The Brexit referendum left people with disabilities fearing that their opportunities in the workplace could come under threat. This is because many protections come from the EU, including disability discrimination. But there is still a large gap between the employment rate of the working age population as a whole and the employment rate for disabled people, which is less than 50%.
Being a part of the EU has made it easier for businesses to hire overseas workers than hire someone with learning disabilities because it can be more expensive to train those with mental disabilities and provide equipment to those with physical disabilities. Now that Britain has decided to leave the EU there will be more opportunities for British disabled people, who could be hired to plug in the skills gap left by EU workers.
In the UK there are many existing schemes to help those with disabilities get back into work such as Access to Work, Foxes Academy and the Government’s Disability Confident scheme. However, substantial cuts have been made to them. Employers generally want to hire those who are ‘ready-made’ as they require less investment. Lastly, not all businesses have the tools or knowledge to hire people with disabilities.
Brexit will be with us by 2019. Over the next few years, we could see employers increasing their efforts to hire those with disabilities and use them to plug the skills gap that will inadvertently come about due to the triggering of Article 50. could also understand the law that surrounds disability discrimination. That involves changing the way in which employment is structured, the removal of physical barriers and/or providing extra support for a disabled worker.
Employers should, more than ever, understand the law that surrounds disability discrimination. That involves changing the way in which employment is structured, the removal of physical barriers and/or providing extra support for disabled workers.
part of our Brexit seriesRead More
Thirty years after the Sex Discrimination Act 1976 (updated in the Equality Act 2010), the wage gap still exists. Some employment solicitors are wringing their hands and the media has recently taken an interest.
Media coverage and government initiatives focus almost exclusively on the pay gap between men and women. But an area of the pay gap that has been mostly overlooked is the motherhood pay gap.
A recent report by the Institute for Fiscal Studies (IFS) points out that men are paid almost 33% more than mothers.
What causes this? How can society claim equality as a value and yet still be plagued by wage gaps? But most importantly, how do we go about ending this sex discrimination?
What is the pay gap and why is it important?
Before we look at how to fix the pay gap, we need to understand what it is. The gender pay gap is not really about men and women being paid differently for doing the same job, it’s that as you get higher up the career ladder, fewer women are represented. Men are simply more likely to be promoted to higher-paying jobs.
The gender pay gap reaffirms stereotypes about roles of men and women. Women mostly look after children, interrupt their careers and this adversely affects mothers’ pay. The longer this has gone on, the more entrenched it has become and the more we take it for granted. Pay gaps are the natural consequence of the glass ceiling.
How does the pay gap adversely affect mothers?
Up to twelve years after the birth of her first child, a mother’s pay falls by about 33% compared to men. It falls by about 7% less than her childless female colleague.
Bizarrely, fathers are often perceived to be more hard-working and this is reflected in their pay. Fathers are paid on average 15% more than childless men . This is because working mothers are usually considered to be of less value to a company. This was illustrated when Nigel Farage made headlines for baldly stating that mothers are worth far less to their companies on their return to work. This continues to perpetuate the idea that women have to make a choice between work and having a family.
When returning to work, mothers often feel they have no choice but to return in a part-time role, because family care and domestic responsibilities are still not equally shared. Far more women than men choose to take parental leave. Employment solicitors and commentators on sex discrimination observe that changes need to be made to allow women to make the decision to have children and not face repercussions for it.
What can be done?
There has been some progress in reducing the gender pay gap, the IFS notes. The current 18% gender pay gap is down from 23% in 2003 and 28% in 1993. Suggestions have varied from earlier childcare opportunities to combining education and the workplace. But things are unlikely to change until fathers take equal shared parental leave, allowing mothers to return to work. And they don’t.
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Employment law’s newest concept is fattism, which is prejudice against people who are fat. This includes bullying or harassing someone because of their weight or refusing a job or promotion for that reason. In the workplace this type of discrimination is common and studies have shown that it is seen as a social norm to make fun of overweight people.
Does fattism only happen to the clinically-obese?
A recent study suggests no. Fattism in the workplace occurs even when an individual is not fat. Women are more likely to experience weight-based workplace discrimination than men. The study revealed that even a slight increase in size had a negative impact on women’s job prospects. This study reaffirms that individuals are more likely to employ someone who they deem looks ‘right’ for the company. Unfortunately, this can be discriminatory as it is usually to the detriment of women, ethnic minorities and those who appear bigger (even if their BMI is in the healthy range).
From an ethical view the results from the study are unsettling as they reveal gender inequality in the workplace. They highlight the unrealistic challenges women face against expectations of how they should look. This could be a factor in the widening wage gap between men and women. However, the question remains as to whether such discrimination is illegal in the eyes of the law.
Employment law and fattism
We are aware of cases that have been in the news where employees have been threatened with the sack for not losing weight.
Employment law doesn’t explicitly ban weight-based discrimination. In the Equality Act 2010, only age, disability, gender reassignment, race, religion or belief, sex and sexuality are protected. However, recent case law suggests judges will step in to fill the gap.
In a case in 2014, the European Court of Justice had to decide as to whether a male Danish child-minder weighing 160kg was illegally discriminated against for being obese. The ECJ ruled that obesity is a disability if it hinders the full and effective participation in professional life on an equal basis with other workers. The UK followed suit in 2015 when a case in the employment tribunal in Northern Ireland unanimously decided that a morbidly obese employee was disabled, upholding his claim of harassment (he was told “you’re so fat you can hardly walk”).
What does this mean for employment law?
The legal ramifications are not that clear. To obtain the protection of discrimination law, obesity must me not just cosmetic but medical. The law offers protection to people who are obese if their weight affects their long-term health. At that point, employers will have to make adjustments that could include bigger chairs, parking spaces closer to work, customised desks and so on.
People who are obese but have no health issues fall outside the protection of discrimination law. But as mentioned earlier, studies show that you don’t have to be medically obese to experience fattism. Some employment solicitors argue that weight-based discrimination should be protected under the same grounds as age and gender. This would include everyone who is discriminated because of their weight or size.
Employment law may not clearly state that weight-based discrimination is unlawful but the employment tribunals need to interpret discrimination law in line with European rulings, which means using disability discrimination to fill the gap in some cases. Employers need to be aware of weight-based prejudices and discrimination. They need to make sure to take action when any employee suffers from any sort of bullying or harassment because of their weight.
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