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
Main image courtesy of Daria Chernova, licensed under CCRead More
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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Birmingham employment lawyers Hatton James legal have issued a record number of tribunal claims in September 2016.
We issued five claims in September 2016, an average of more than one per week.
Managing partner Jaspal Singh said “it’s been a really busy period for us, when the sector as a whole is struggling, because of various government initiatives to reduce the number of claims going through the employment tribunal“.
Hatton James is among the foremost among Solihull and even among Birmingham employment lawyers. Jaspal said “most of our clients come through referrals or having searched online and seen that we are well-reviewed on the internet“.
The claims issued this month include:
- A new trainee dental nurse who resigned because of her manager’s nastiness after she pointed out problems with infection control
- An HGV driver sacked after 12 years when his licence was suspended for two weeks on medical grounds
- Two jewellers, one who was dismissed because she needed time off to recover from an old shoulder injury …
- and the other, who resigned because of rudeness when a new manager took over
- A factory manager whose employer wanted him to slow down more than he did, as he reached retirement and ranted at him in frustration
These are a typical mix of the claims that Birmingham employment lawyers see; unfair dismissal, age and disability discrimination and whistleblowing. A couple are what we consider to be open-and-shut cases; others are more risky, perhaps because the depend on what the witnesses or the paperwork will say. One of these tribunal claims is funded by a no-win, no-fee agreement, one is paid for privately and in the other cases the client has legal expenses insurance. In each case we feel that the employee really needs to issue a claim in order to protect their legal rights and obtain a settlement or compensation.
These claims come on top of our bread-and-butter work of guiding employees and employers through grievances and disciplinaries and advising on the terms and effect of settlement agreements.
In a future blog post, we’ll take one of these cases as a worked example and explain what happens from when the client walks in through the door.
By Jason HarbourneRead More
Birmingham employment solicitors recently won a victory for a mother of one whose employer refused to allow her to return to work part-time after a pregnancy (we read in the Post).
Emma Seville was a cabin crew manager for Flybe at Birmingham Airport for over a decade. She worked full-time on fully flexible working hours. After she had a baby in August 2015 she wanted to return to work on fixed part-time hours to fit around childcare arrangements. She made a flexible working request. Her employer would only offer hours that they would choose to fit in with their needs. This meant that every time the rotas came out she would need to make new childcare arrangements. It meant that she couldn’t juggle her job and her childcare responsibilities effectively.
She took her employer to the employment tribunal. The employment tribunal found she had been the victim of indirect sex discrimination against.
Indirect sex discrimination (see our page on sex discrimination) is poor treatment because of something that tends to come with being a woman or that women mainly experience. For example, women have greater childcare responsibilities.
The practice of requiring full-time working or long hours that affects women more acutely (as they have the most childcare responsibilities).
Such practices are fine if they are justified, which is a legal term meaning they are no more discriminatory than they have to be in order to reach some legitimate aim. But in our experience, it is a rare case when part-time working or job-sharing cannot be made to succeed, with the right will.
This sort of case is familiar to employment solicitors up and down the country. Recently, our firm settled a similar case, where an employee resigned after not being allowed to change her hours or work as part of a job-share when her nursery’s opening times changed.
Emma didn’t resign and her employer will likely agree compensation and discuss working hours with her. They probably fought the case because they were hoping for a precedent that they could use with other employees in the country. Their bill for employment solicitors to fight the case is probably several times the compensation payment.
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A Parliamentary report into racial discrimination by the Women and Equalities Committee highlights some hidden discrimination suffered by Muslim people. They face the highest level of unemployment of all religious and ethnic groups, 12.8% are out of work compared to 5.4% for the general population in the UK.
Several reasons have been put forward for these statistics. They include discrimination, islamophobia, stereotyping and pressure from traditional families. However, several possible solutions do exist to these issues, and we examine some of these below, together with pros and cons.
MPs have proposed name-blind recruitment as “part of the solution” to the biases. Mr Smith is more likely to be called to interview than Mr Khan. However, this will only work at the primary stage of recruitment, after which blind applications will not resolve the bias that comes in face-to-face interviews.
Another proposition that has been suggested is quotas for Muslim applicants for vacancies. However, this could be perceived to do more harm than good, in a situation where, for example, a perfectly qualified candidate is rejected in favour of a Muslim candidate from a quota list.
Employers should make a conscious effort to increase their employees’ understanding racial discrimination and stereotypes. This could be achieved through courses to enhance cultural awareness and understanding.
The government needs to take action to ensure employees are empowered to challenge racial discrimination. This could include a media campaign to highlight situations where employees fear challenging discrimination, in case they lose their job if they speak out.
A nominated individual in the interview who is well-trained in recognising any stereotyping or discrimination. This person could be responsible for giving training courses to employers to enhance awareness of discrimination issues. They would be involved in the decision-making process, although this would have a significant bearing on recruitment costs.
Note for those wishing to improve diversity
Employers may be allowed to favour Muslims in one specific situation. Where candidates with a particular protected characteristic (such as Muslim religion, Asian race or females) are disadvantaged (such as in recruitment) a recruiter is allowed to treat a person with that characteristic more favourably than another as long as the person with the relevant characteristic is “as qualified as” those others (s159 EqA 2010).
I.e. you are allowed to discriminate favourably to balance your workforce as long as you don’t disadvantage someone who is better-suited to the job.
This is called ‘positive action’ and has only been legal in recruitment since 2011.
By Raheena Jamila Khan
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Currently employers can recruit staff from the EU countries (Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech, Denmark, Estonia, Finland,
France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden) with no problems. EU nationals still have the right of free movement to live and work in the UK. So do those from the European Economic Area (Iceland, Liechtenstein, Norway) and Switzerland.
However, nobody knows (see our other article for some shameless speculation) what will happen to this area of employment law after Brexit – this is part of the exit negotiations. Commentators think it is likely that Britain will have to continue to accept foreign workers in return for not paying import duties on goods sold to the EU. No doubt there will be tweaks, but these are up in the air for now. Farmers who rely on Poles and Lithuanians wait anxiously. We have employer clients who rely on Eastern European programming labour, for example.
There is certainly a risk that that EU workers will not be able to come here to work once Brexit is finalised. There is even a risk that that existing workers will have to return home. Anecdotally we have heard of EU staff returning now because they feel unwelcome after the vote.
Remember that some EU nationals may also have dual nationality or a right to remain because they will have lived here for long enough already by ‘B-day’.
The negotiation process is likely to take the full two years allowed by EU law. This is basically a negotiation not about the exit but about the relationship after the exit.
What not to do
Some employers will want to avoid employing EU nationals now, at least in longer-term roles (that is non-seasonal ones). Otherwise they may have to deal with disruption in 2019 when employment law in this area will change.
The problem with this approach is the risk of discrimination claims. Employment law permits an employer to refuse to hire an individual who doesn’t have the right to work in the UK. However, refusing to hire a person because he or she might not have a right to work in the UK at some point in the future is a very different prospect.
Next steps for employees
Some employees may be able to obtain a right to remain in the UK now. Those who have five years of residence or a year of permanent residence might future-proof their ability to work here by applying to change their status.
Next steps for employers
If employers wish to future-proof their businesses, they should not simply refuse to recruit EU nationals yet. This would be unlawful as direct discrimination on grounds of nationality.
If the role is really part of a long-term project (that is, longer than two years), an employer could adopt a policy of not hiring anyone without indefinite right to remain and work in the UK. This would need to be genuine and justifiable; this involves weighing up the possible disruption of losing them, the longevity of other staff in the role.
This uses the law on so-called ‘indirect discrimination’. The legal test is whether the policy is a ‘proportionate means’ of achieving a ‘legitimate aim’. This means is it no harsher than absolutely necessary when you’ve weighed up the interests of the employee and employer. It’s a fairly tough test generally and there’s no caselaw on it in a Brexit context yet. However, it will often be worth an employer chancing it when it considers the likely risk of a claim and amount of compensation. It would be much safer to wait for the negotiations to progress, because once the new rules are in place there is less speculation on the ‘interests of the employer’ side of the equation.
Do contracts need to be amended?
No. There is no need to amend any employment contracts. If staff are not permitted to remain/work in the UK after Brexit, they can be dismissed fairly and without race discrimination under employment law, whatever an out-of-date contract says.
We will of course keep you updated.
Part of our Brexit series.Read More
The TUC has reported that half of women suffer discrimination, sexual harassment or sexist treatment at work. It found that 80% of women are too frightened, ashamed or embarrassed to report it. Or they felt it would not be taken seriously. Even fewer go to employment solicitors about the problem.
From a sample size of 1,500:
- More than half of women had experienced some form of discrimination, sexual harassment or sexist treatment
- A third reported hearing unwelcome jokes or comments, such as inappropriate comments about their sex life or clothing
- A quarter had experienced unwanted touching, eg kissing or hugging
- A fifth had put up with unwanted advances
- Only a fifth reported it to their employer
- More women reported that they had been treated worse than better as a result of reporting the harassment
- 1% reported that they had experienced a serious sexual assault or rape at work
In 20% of cases it was their direct line manager who was responsible. In only 3% of cases was a junior colleague to blame
Sexual harassment is unwelcome behaviour of a sexual nature that creates an intimidating, hostile or humiliating working environment.
It is rare that victims of discrimination, sexual harassment or sexist treatment take legal action such as a tribunal claim. A 2013 survey by a firm of solicitors found similar figures (60 per cent of women had experienced inappropriate behaviour from a male colleague in the workplace and nearly half had been warned to expect inappropriate behaviour from particular colleagues when they had started).
Comments by those surveyed included:
- “I’m struggling to find a job as a web developer because all male offices think a girl would be offended by their sense of humour.”
- “At the job I recently left, a male manager said to me (in front of a female manager) that I would do well in the organisation because I have big boobs.”
- “I don’t trust my manager to support me in this or similar situations and I’m actively looking to leave my current position because of this. I felt that my concerns had been dismissed”
In what could be a very exciting development, the Attorney-General (the EU’s foremost employment solicitor) of the European Court of Judgment has given an opinion in the religious discrimination case of the Belgian wing of G4 that has a policy of banning the Muslim headscarf (and other visible religious symbols) in the workplace.
This is the first case of religious discrimination which has reached the ECJ
This is important because although this is only an opinion, it is written by Europe’s top employment solicitor and the ECJ follows the opinions in about 75% of cases.
The opinion is that an employee may be expected to moderate the exercise of their religion in the workplace and the key issue is what is a fair balance between employer and employee, which is for the court or tribunal to decide in each case). The Advocate General hinted that a ban of this type was a fair balance in the workplace and not a breach of religious discrimination laws.
Important factors for an employer or tribunal faced with the question of what is a fair balance will be:
- The size and conspicuousness of the religious symbol (a ban on small jewellery is more likely to be acceptable than a ban on headgear)
- The nature of the employee’s activity (if customer-facing, the employer has more of a say)
- The context in which she has to perform that activity (if there is a wide cultural clientele, the staff can be expected to be more neutral)
- The cultural norms of the country (ours is fairly multicultural; in France, there is a culture of secularism).
- More restraint may be expected of an employee in a prominent role or a position of authority than of an employee working at a lower level.
This case follows hot on the heels of Mrs Eweida’s challenge to British Airways in this country, where the Court of Appeal found that its uniform policy (no visible crosses allowed, only mandatory items such as the turban) was not discrimination because it amounted to a fair balance. But then she took the case to the European Court of Human Rights, which decided that the Court of Appeal had failed to protect her right to religion because banning religious symbols at work was overkill). BA’s uniform policy at the time prohibited the wearing of any visible item of adornment.
The ECJ will want to see consistency across decisions if possible so why might this case go a different way to the BA case? The Attorney General suggests that this kind of dress code rule can only be regarded as fair if it is applied to all symbols/garments equally (unlike the BA dress code).
A key feature of the fair balance is whether the desired objective (a corporate ethos of religious neutrality) could be achieved by other, more lenient means. For example a company headscarf in company livery. This would be less intrusive for employees but would not achieve the objective of religious and ideological neutrality because it would still be a visible religious symbol.
Currently, employment solicitors advise against prohibiting religious symbols in the workplace as it is likely to lead to religious discrimination claims. However, if the ECJ case follows this opinion, as it probably will, then it will be a heavy-hitting case which could well change what we advise employers. Also, a few years will first need to pass to let some cases come through the UK courts and to give the appeal courts a chance to follow suit.
By Jason HarbourneRead More