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.
Image by Eddie, licenced under CCRead More
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
Image courtesy of Fahrurrazy Halil and licensed under CCRead More
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
The Employment Appeal Tribunal (EAT) has come down in favour of employers in clarifying that childcare vouchers do not need to be provided during maternity leave if they are provided under a salary sacrifice scheme. This had been a grey area until now.
The law gives staff on maternity leave the benefit of all of benefits except normal pay. This includes ordinary childcare vouchers but until now, employment solicitors have not known whether that includes childcare vouchers provided through a salary sacrifice scheme. Some said it was part of normal pay, others said it looked more like a perk. Guidance from HMRC was that it was pay but some employers chose to make savings and not provide it.
One employer going down this route was an employment/HR company. It made a saving but risked findings of pregnancy discrimination if a test case proved it wrong.
The EAT has held that this is a lawful practice. It warned though that where employers provide vouchers as a benefit in addition to salary rather than by way of salary sacrifice you have to continue it during maternity leave.
However, where the vouchers are provided by way of salary sacrifice, the vouchers are part of salary that has been diverted before appearing in the employee. So, as en employee you forgo this benefit during maternity leave and that is part of the cost to you of the tax advantage you get when you are not pregnant.
The EAT acknowledged that this was a case that could have gone either way. It may be that a later EAT or Court of Appeal case overturns it but for now this decision is binding on Employment Tribunals and employers can follow it safely.
Case report: Peninsula Business Services Ltd v DonaldsonRead More
We saw yet another news story recently about a female employee who was told by her employers what to wear in the office, which employment solicitors warn breaches sex discrimination laws.
Liberté Chan is a meteorologist (‘weather girl’ is considered demeaning these days) who was handed a cardigan live on air after viewers complained that it was too showy or revealing.
This is an American news story but it has gained international attention and is relevant to several recent news stories in the UK touching on work uniforms including this one and another that we reported on in our blog.
It may well give grounds for resigning and claiming constructive dismissal if your employer embarrasses you in front of colleagues / customers (or viewers in this case). Although the fact that live tv brings a very wide audience, publicity and little time to give properly-weighed consideration probably lowers the bar for the employer.
Employment solicitors have noted that it is overwhelmingly women who feature in these stories about what to wear at work. Men’s clothing appears never to be policed. This on the face of it is ‘institutionalised sex discrimination’ but to win a tribunal claim on this you would need to show that you in particular were treated that way because of your sex. It is a different thing altogether to show this in an individual case.
As we’ve said before, sex discrimination law recognises that the sexes have different bodies and that there are different cultural norms (it is normal for men to wear ties but unusual for women, who can show leg but men do not). The law allows employers to impose different dress codes on men and women for this reason.
This is odd from a conceptual point of view. The whole point of laws against direct sex discrimination (about treating men and women differently because of their sex) is to change cultural norms where necessary. That is why employers can no longer pay married women less or refuse to employ people of colour, which used to be common and even socially acceptable. So it is peculiar that a form of direct discrimination is permitted because it is socially acceptable.
However the law will step in if a certain boundary is crossed, it’s just that no-one knows where that is because so few cases come to tribunal. Our experience is that judges are very interested in picking on women for their clothing at work and will give the employee the benefit of the doubt when it comes to showing that it was different treatment; then the question becomes whether it was on the ground of their sex and the employer tends to get the benefit of the doubt about this issue of what is the cultural norm.Read More
An agency receptionist was sent home from work at PWC the accountants firm (though supplied by a third party) after refusing to wear high heels, the BBC has reported.
This story has parallels with a similar one we wrote about recently. This very firm of employment solicitors had one Birmingham client who recently complained in a sex discrimination claim about being told NOT to wear high heels in the office.
Nichola Thorpe was told by managers to wear shoes with at least a two-inch heel and was laughed at when she complained that male colleagues were not asked to do the same (which could be sex discrimination).
She didn’t want to wear high heels throughout the day for comfort reasons and argued that it didn’t impact her ability to do the job.
She has started a petition to Parliament calling for the law to be changed so women cannot be forced to wear high heels to work. 10,000 people have signed it so the government will now have to respond.
The legal position is that employers can dismiss staff who do not comply with reasonable dress code standards and there can be different standards for men and women, as long as there’s an “equivalent level of smartness”. This particular issue has never been ruled on, though our bet is that an employer would be wrong to insist on this level of detail to footwear from female employees.
We believe that high heels have a particularly sex-skewed purpose. As relayed in the film Kinky Boots “Sex is in the heel. Stilettos require constant balance from the upper leg causing the muscles of the backside to tense and appear pert and ready for mating.”
Her employer said that it would change its policy and PWC distanced itself from the decision.Read More
An interesting case from the Employment Appeal Tribunal has been reported. Employment solicitors are noting its employee-friendly slant.
Mr Risby was a paraplegic following a road collision and worked for the council. He also had a short temper, which was nothing to do with his disability.
His employer invited staff to a meeting and when Mr Risby found out that it was in a basement with no wheelchair access, he was angry and worked himself into a state about it overnight.
At work, he shouted about it at a junior, almost reducing her to tears. He said, in the open office, “the Council would not get away with this if they said that no f***king n***ers were allowed to attend”.
He was suspended and dismissed, despite his defence that he was not racist, just making a point in a strong way. He lost his case at the employment tribunal but appealed, hoping to show that the dismissal was unfavourable treatment “in consequence of his disability”. This is the hurdle of showing that the dismissal was in some way linked to his disability, which is what this case is about.
If he could get over this hurdle, he would still need to show that dismissal was disproportionate but (a) this might be easier than showing it was unfair and (b) one hurdle at a time.
The tribunal had said that there was “no logical connection between his behaviour on 19 June and the fact that he is wheelchair bound“.
The EAT however said there was such a connection. It was hidden behind a couple of layers i.e. wheelchair user status → inability to attend meeting → anger → rudeness.
So that first hurdle can be overcome quite easily for an employee and these cases will tend to turn on whether the employer’s treatement is proportionate or not, which is just a question of reasonableness. This case will go back to the employment tribunal for another look, though we suspect that the answer will be the same for the employee.
Case report: Risby v Waltham Forrest BCRead More
In this article Birmingham employment solicitors Hatton James Legal get to grips with the possible effect on UK employment law of leaving the Eurozone.
Being part of Europe has meant that we have had to accept laws made by “unelected Eurocrats” as a condition of membership. Usually those are employee-friendly laws, that future right-leaning governments may choose to do away with. Our EU membership may come to an end next month and so which are the laws that originally came from the EU and how might they fare afterwards?
We do our best to make predictions, in the absence of any helpful promises or threats by politicians(!).
- Unfair dismissal
This is a UK-derived right and therefore will be unaffected by the referendum.
But we may see discrimination claims brought within the ability of employers to manage out employees with “protected discussions”. At present, employers have to be careful when offering a paid departure to an employee who has a potential discrimination claim, since that can remove the protection of the employer from having that discussion referred to in an employment tribunal.
- Rights to sue for unlawful deductions
Again, this will be unaffected as these laws are nothing to do with the EU.
- Working time
The EU mandates that we have four weeks’ holiday paid each year. Britain’s Labour government increased that voluntarily to 5.6 weeks (28 days including bank holidays) in 1998. A future Conservative government might reduce holiday entitlement significantly. Or may decide to make holiday pay based only on basic pay, not bonuses and overtime. The ability for a sick employee to carry over holiday to a new holiday year is particularly at risk.
The 48 hour working week is from the EU law, but it was never very strong, because of opt-outs so it may not be tinkered with at all.
We don’t believe that the right to a daily rest period and night work limits will be changed, because of the health and safety implications – it would be politically difficult.
- Family-friendly rights
These have been mainly driven by the EU. Those that are a staple part of British life are unlikely to be tweaked much. In fact, some initiatives are domestic, such as shared parental leave, a Conservative invention. But some of the fringe rights such as the right to take time off for dependants may be at risk – we are in the dark about this.
- Discrimination laws
Again, these have been mainly EU-driven. Our feeling is that rights not to be discriminated on for reasons of sex, age, race, disability, sexuality etc are not going to be withdrawn but governments may not be able to resist watering down some provisions around the edges, especially in areas where EU caselaw from cases originating in Portugal, Poland etc has inched the protections in favour of employees.
We think that age discrimination in particular, the newest discrimination, may suffer, bringing back the right for companies to retire off staff over the state pension age.
In particular we may see Conservative governments tweaking the balance by removing those areas where currently the employee is given the benefit of the doubt (the “burden of proof provisions”).
Equal pay awards may become a thing of the past; they have been a large burden on some councils, especially in Birmingham of course.
It is entirely possible that uncapped discrimination awards may be a casualty of an “out” vote; perhaps the unfair dismissal cap of one year’s pay will apply to all employment claims.
And we wonder whether part-timers, agency workers and other non-traditional employees would continue to have protections, since Conservative governments tend to be in favour of flexible working practices.
We don’t know to what extent future Governments might change rights under Tupe to transfer to a new employer if a business is bought out, but suspect that they may be watered down to facilitate a more flexible business economy.
Commentators predict for example that the collective redundancy provisions, that let unions intervene and that protect workers in large companies (20 or more staff), may be done away with so that they have no right to 90 days’ notice of redundancies, just like staff at smaller companies.
We remember that a Labour Government extended Tupe to ‘service provision changes’ (that is extending Tupe rights to contracting out situations and changing service providers), but then the subsequent Conservative government didn’t reverse that extension.
- Data protection
These are EU laws and again we predict that they may be watered down, though we doubt it, given that hacking and data loss by public bodies is a hot topic for the media at the moment.
Life would become a bit simpler for employment lawyers and HR staff simply because of the reduced need for keeping up with new legislation every time the EU institutions bring in new laws (which they do about twice a year) and when the European Court of Justice makes a ruling which tweaks employment rights one way or another.
- Immigration and recruitment from overseas
EU nationals may lose the automatic right to work in the UK. We think that there would be changes to the work permit system affecting the recruitment pool.
We simply don’t know what the future landscape may look like.
There may be opposition to many of these ideas in Parliament, preventing large tweaks. And our EU counterparts may effectively keep a UK government in check by refusing to do business with us or imposing tariffs if we implement certain changes, because they could perceive us as becoming unfairly economically flexible and undermining their social goals.
Therefore it may be that a Brexit would not herald any real change for employers, staff and lawyers at all. One thing is certain – the world did not change on 24 June.
Part of our Brexit seriesRead More