A Starbucks employee has won a tribunal claim against her employer for disability discrimination after being accused of falsifying business records which were inaccurate because of her dyslexia.
Meseret Kumulchew’s disability means she has trouble reading, writing and telling the time. She made mistakes on fridge, roster and financial records.
She asked for adjustments such as not having to do paperwork alone, having more time to do tasks, using larger font sizes in documents and being shown how to do things rather than having to learn tasks from printed materials.
Starbucks resisted the case but it eventually went against them and they now face compensation being fixed by the tribunal if it can’t be agreed.
In the meantime, Meseret remains in her job with the coffee-house.
Employers have a duty to make reasonable adjustments for employees with disabilities, which includes learning disabilities and physical disabilities. These adjustments can include changes to the layout of the workplace, ways and times of working and the duties themselves. They should be made after discussion with the employee and their doctor or with occupational health. Some employers find it hard to make these adjustments because it is more convenient to have a one-size fits all policy. Some employers don’t have HR departments that are equipped to deal with exceptions to the rule and some business are set up to make exceptions more easily than others.
The details of this case aren’t known to us but an important part of her case was that her employer had always known about her disability. Some employees are reluctant to share details about their conditions with their managers but this is an important part of obtaining the adjustments they need and of succeeding in a tribunal claim if adjustments are not provided.
The other side of the “reasonable adjustments” coin is that if adjustments are not made, an employer may be on the hook for compensation if an employee is disciplined or dismissed or forced to leave because of a reason related to their disability, unless the employer can justify its conduct with sound business logic.
The British Dyslexia Association says that dyslexia is a common learning difficulty that causes problems with reading, writing, spelling and following sequences of instructions. It estimates that one in 10 people has dyslexia to some degree. Employers should not assume that employees who are “slow on the uptake” should be held back from promotion or criticised as there may be underlying reasons and the employee may have good coping mechanisms if given a chance.
Starbucks told the media that it was in discussions with employees about providing more support to employees with disabilities.Read More
British Airways has always insisted that female cabin crew wear skirts and dresses, whilst men have donned trousers in what UK employment law says is not a policy of sex discrimination.
BA has now said that it will allow its female cabin crew to wear trousers, following a two-year long collective grievance by female staff.
More than three quarters of its cabin crew wanted the choice to wear trousers, according to the union that fought for this result, citing warmth, health and sexism reasons.
A formerly sexist industry
The airline cabin crew career started as a male preserve, then became female-dominated in the 1930s, whilst men have joined the industry in growing numbers since the 1980s. Many airlines insisted on using unmarried women with age, height, and weight requirements (read: conventionally attractive single women) until anti-discrimination laws prevented this.
Dress codes in the UK
UK employment law allows gendered dress codes, that is rules that apply differently to men and women, based on the fact that men and women have different bodies and societal expectations. So there was nothing unlawful about BA’s dress code just because it applied differently to men and women. A dress code might say, for example, that women must wear bras and that men cannot. We have heard of this. It might say that men must wear shirt and tie whilst women must simply dress smartly.
This is lawful because it reflects society’s expectations of smartness equally as they apply to men and women. In our view, however, the argument that it “reflects society’s expectations equally” simply permits different treatment because society deems it acceptable. This is the opposite of what discrimination law is supposed to do – drive behaviour rather than reflect existing standards.
So whilst the law hasn’t changed by this decision of a private company, it advances society’s expectations in a small way. Smaller companies will follow BA’s lead and when there is a big enough head of steam, the law will follow and perhaps one day require that dress codes apply equally to all staff.
Eventually, male employees who feel more comfortable in a dress may benefit from protections afforded to transvestites, which currently they do not.Read More
We read in a recent news article about a bar manager who was forced to quit her job by the boss when she revealed that she was pregnant. The boss was quoted as calling her “fat and wobbly”. Then she and her partner were then told to move out of the gastro-pub accommodation where they had lived for 5 months. She lives in Solihull. Employment lawyers are bring a tribunal claim on her behalf and the case continues.
The employee claims that she was dismissed for becoming pregnant although her employer said she has left her job “by mutual consent”.
The employee, from Solihull, described how her boss responded by swearing and telling her not to expect maternity pay, then he told her that if she formally handed in her resignation he would pay her notice pay. She replied to say that she had never intended to resign and wanted to continue working in the pub until she started maternity leave.
The law says that pregnant women have rights to health and safety protection at work, which may be violated by a boss who subjects an employee to pressure and abuse. Also, pregnant women must be treated no less favourably than their male colleagues. They must certainly not be dismissed because they are pregnant. An employer who forces you to leave and dresses it up as a resignation or a departure “by mutual consent” will find that the departure is treated as a dismissal.
The employee in this case stands to be awarded injury to feelings of say £10,000 plus compensation for loss of pay whilst off work if she proves her case.
We at Hatton James Legal have fought many such cases in the past and have usually managed to extract settlements from the employers.
We will post an update here when it is available.
By Asam MahmoodRead More
Employment solicitors have been eagerly awaiting a Court of Appeal case on whether employees who have lots of disability-related absence should be given an easier ride in dismissals for absence.
Ms Griffiths, an employee with 30 years’ service, was off for 62 days straight with illness, during which she was diagnosed with a disability (post viral fatigue and fibromyalgia). See our article on disability discrimination for details of what this means.
As a result of this absence (plus a further few days for non-disability absence), her employer gave her a warning and she brought a claim for disability discrimination, claiming that the employer should make the reasonable adjustment of ignoring her disability absence so that she would not be under the threat of dismissal in the future. She also claimed that the warning was disability “arising from” her disability, which is a related concept. She was asking for an extension of the trigger in her case from 8 days in a rolling year to 20 days.
Her employer defended the claim on the basis that its policy envisaged that a manager had the discretion to make adjustments to the trigger points in cases of disability.
She eventually lost her case, but the judgment does help employees in a similar situation.
The case is complicated to understand but the Court of Appeal judgment boils down to this:
Does an attendance policy treat disabled and non-disabled employees differently?
Yes, said the Court of Appeal, overturning previous decisions. Caselaw had taken an approach that was too restrictive by saying that an attendance policy treats the disabled better if it allows trigger adjustments to be made. It doesn’t. A policy that an employee must maintain a certain level of attendance not to be subject to disciplinary sanction treats disabled people worse, since they are more likely to be off sick.
Is allowing more time off a “step to avoid disadvantage”?
The employer argued that allowing more time off was the opposite of a step allowing an employee to work. The Court of Appeal rejected this as too clever. It is a step allowing an employee time off temporarily with the aim of keeping them in work in the longer-term.
Was Ms Griffiths’ proposed extension of the trigger reasonable?
An employer only has to make ‘reasonable’ adjustments. The Court of Appeal reminded us that this is a decision for the Employment Tribunal, not for the Court of Appeal. It said that an employer is entitled to say, after a pattern of illness absence, that it should not have to accommodate absences any longer and can take into account the whole of the employee’s absence record (including disability absence) when making that decision.
It said that where a doctor reports that a disabled employee is likely to have only limited and occasional absences an extension of the trigger point, may be reasonable as an adjustment. Employees with more serious conditions should not expect this indulgence though.
A ray of hope
It then said something that is not so easy to understand. It pointed out that disability discrimination law is not just about reasonable adjustments but also about discrimination ‘arising from’ disability. An employer may not have a duty to extend a trigger point for an employee who takes unreasonable absence, but it may still be a breach of the law to dismiss for it!
“It would be open to a tribunal to find that the dismissal for disability-related absences was discrimination arising out of disability if it was not proportionate to dismiss”
We don’t understand what circumstances the Court of Appeal hand in mind when envisaging that it would be unreasonable to extend a trigger point but not proportionate to dismiss. Proportionality means not doing something (eg dismissing) when there is another option that would meet the employer’s aim of having a stable workforce. This seems to us the same thing really as acting reasonably.
Ms Griffiths lost her case because she was asking for too great an extension to the trigger point. Employers should make extensions to trigger points for disabled employees but they don’t need to be large extensions, especially in cases of ongoing absence (as opposed to long one-off absences in a diagnosis period).
Confusingly for employment solicitors, the Court of Appeal left it open to employees to claim compensation for disability-related dismissals if they are dismissed at the end of an attendance process and gave no guidance on when this might be the case. We can see an argument that it might be disproportionate to dismiss in a case where the employer’s (reasonable) failure to extend a trigger point has worsened a condition and caused an employee to take more time off than they would have done. Other than that, we shall have to see what subsequent caselaw brings.
Case report: Griffiths v DWPRead More
A teacher has won over £100k and lost much of it in an employment tribunal claim and held onto it on appeal.
After several years of unimpeachable service and good results, a new manager, that she described as vindictive, came along and took a dislike to her. The manager said that the teacher’s teaching was poor, when there was no evidence for this.
She resigned, agreeing terms, which included a payoff and a good reference.
But the head-teacher only gave a basic reference, which the teacher said was discriminatory.
She claimed unfair constructive dismissal and age discrimination, on the grounds that the allegations were trumped-up because she was expensive (being more experienced than younger colleagues).
Faced with a £108,000 payout, the employer appealed on a number of grounds, including that the employment tribunal was wrong to give her the benefit of the doubt in her claim that the academy had a practice of selecting the most expensive teachers to dismiss. Having such a practice would be indirectly discriminatory on the ground of age.
There are employment tribunal rules that give the benefit of the doubt to employees bringing discrimination claims, because employers who discriminate will never confess to it and rarely keep records of wrongdoing.
She lost out on the discrimination claim because the tribunal made a mistake of law – it gave her the benefit of the doubt on the question of whether the academy had adopted a practice of getting rid of the most experienced teachers. The employment appeal tribunal said that this was something that an employee needs to prove. Once she does this, then the tribunal will presume (unless the employer can show otherwise) that the decision was taken on the ground of age.
She held onto victory, though only for unfair discrimination, which carries a cap of a year’s salary, which for her would be between £40k and £50k plus a ‘basic award’ based on her length of service. We estimate that her compensation would have been slashed by at least a quarter because of this decision.
This case goes to show that the laws on discrimination are complicated and that even tribunals can get the details wrong.
Case report: Dippenaar v Bethnal Green Academy.Read More
We reported on this case some time ago. The case is about an employment tribunal that found a family abused its Indian domestic help recruited from India and paid 11p for each hour that she worked, calling it race discrimination on the ground of caste. It has awarded her £184,000 in back-pay for working 18 hour days and she looks set to receive more for injury to feelings.
Employers Pooja and Ajay Chandhok kept the woman as a low-paid ‘servant’ working in their home in Milton Keynes for four and a half years, keeping her passport and controlling her movements.
Her lawyers had said that her employers had treated her that way because she was perceived as underneath them due to her caste. An employment tribunal found that this was a form of race discrimination.
Caste discrimination is something that UK employment law has declined to make a separate discrimination despite the new Equality Act of 2010. This has not been without controversy but enterprising lawyers have found ways around this with clever arguments based on the wording of race discrimination laws.
The claimant felt that she had been brought over from India as she spoke the language of the family but did not know UK employment law rights.
Eventually the claimant resigned, and found a charity, that provided emergency accommodation and later an employment law solicitor. Mr and Mrs Chandhok were ordered to pay £183,773, which was the estimated value of the number of hours she worked times the national minimum wage, less the pittance actually paid.
Hatton James is one of few firms with experience of bringing caste discrimination claims. If you have a race discrimination case in an Indian context then this is an angle that you might want to consider.
News report: Tirkey v ChandookRead More
A clear example of this can be seen in the recent global gender gap report which is an annual survey taken on by the world economic forum, founded in 2006.
The report claims that European women are paid a shocking 36% less than men for doing equal or similar jobs.
This report identifies that there is still a huge gender gap which has still not been resolved in the modern era. What is even more shocking is that the UK is no better than most of the other European countries. In actual fact our ranking has slipped out of the top 20 countries landing us at 26th place.
What went wrong?
After all we did previously rank 9th but over the years the economic report has seen us slip into a steady decline. Some reports suggest we are slipping in terms of sex discrimination because of the way we used to structure our childcare and paternity leave (as of 2015 maternity leave can be shared), and increasingly large amounts of women in senior roles are taking home less than men also in senior roles.
Overseas, the worst countries for these gender gaps are Italy, France and Hungary currently ranked between 129th and 126th place with only 48% of women receiving an equal amount to men.
Predictions suggest that the sex discrimination in salaries may not be eliminated until the year 2095.
It appears however women are not the only ones being hit as recently back here in Britain a group of men have recently won an equal pay claim against the University of Wales.
The group of men may go down in history for being the first group of males to actually come out and seek legal advice for a sex discrimination claim. The finding came after a new system was put in place at the university where instead of being on a £45 an hour a week it was decreased to £37, they then noticed female colleagues had higher pay even though they stand on the same pay scale.
Another group of men have also insisted upon making a sex discrimination claim if the men were successful; in total if all 25 male employees win their claim and get back pay plus interest, the university could end up paying out a substantial amount of £750,000.Read More
The Metropolitan Police deleted records on sex and race discrimination against one of its employees, according to a BBC news report.
Discrimination in the Met
An employment tribunal heard that a 35-year old police officer was singled out for unfair treatment. She was part of the armed group that protects VIPs.
Managers asked a police officer investigating the Met’s discrimination record to delete references to race and sex discrimination from a report into the officer for the Diplomatic Protection Group. This is not a breach of UK employment law but if an employer does this it tends to suggest that it takes a lax approach to diversity.
WPC Howard brought a discrimination claim alleging that her employer directly discriminated against her and victimised her on the grounds of sex and race between in 2012. Her employer dismissed the complaint without a proper investigation and the tribunal decided that this was an act of spite done because she had brought a complaint of race and sex discrimination in the tribunal.
The treatment against her also amount to discrimination and harassment. London mayor Boris Johnson said he was dismayed by the findings of the tribunal.
What led to victory for this employee was that within weeks of becoming her line manager the inspector formed the view that she was below par but he couldn’t show any real basis for believing this.
It became clear during the employment tribunal case that deleting records relating to discrimination was routine policy within the Met.
Although deleting information is not a breach of UK employment law any business that does this is leaving itself wide open to losing any employment tribunal claim it faces, since the rule is that there is no smoke without fire, i.e. if a claimant can prove that discrimination seems to have taken place, the employer has to disprove it in order to win the case.
Information that you have on file can include details of grievances and disciplinaries, diversity information gathered from questionnaires, records of managerial training, emails to and from HR raising concerns and so on. In an employment tribunal claim, both parties are ordered to send copies of all documents containing information relevant to the claim (for example a discrimination claim) and this is the sort of information that is relevant. The lawyers will use that in an employment tribunal hearing to try to show, for example, that the workplace doesn’t take discrimination seriously or that the claimant willingly participated in harassment.Read More
An article in the Times recently explains that 400,000 employees left their jobs last year, but only half that number found a job. Disability discrimination must be at play. This means that disabled employees are the big untapped resource in HR and being subjected to disability discrimination.
Disabled candidates and employees need to have reasonable adjustments made to them by law and are protected against disability discrimination.
But in our experience, the risks associated with employing disabled employees make it very worthwhile to hire them.Read More
The Equality Act protects us from discrimination related to sex, age, race, colour, nationality, ethnic origin, disability, sexuality, transgender status….but not caste discrimination. Or does it?
What is Caste?
The caste system in Britain is relevant to people with Indian heritage (5 million of us), whom it divides based on birth, marriage and occupation.
s9 of the Equality Act 2010 requires the Government to introduce regulations defining caste discrimination as a form of race discrimination. The coalition government plans a three-month public consultation starting in Summer 2014 and ending with legislation in Summer 2015.
However, not everyone has wanted to wait for the Government to act.
In the January 2014 employment tribunal case of Tirkey v Chandok, Mrs Tirkey (of the Adivasi, so-called “servant”, caste) was Mr and Mrs Chandok’s live-in domestic servant, fellow Indians. She was treated as a slave, had no time off in four years, was not allowed to sit on the same furniture as the family or to use the same knives, forks or plates. She given pocket money rather than a salary. Eventually she escaped her situation and brought a host of claims including race discrimination based on her caste.
The judge at an interim hearing found that the definition of ethnic origin in the Equality Act can cover caste discrimination because ethnic origin covers ideas such as a shared history, cultural heritage, geographical origin, ancestry, language, religion and minority status.
Caselaw had already decided that discrimination because of descent is unlawful, in a case establishing that Sikhs (like Jews) are an ethnic group for the purposes of the Equality Act’s predecessor.
Mrs Tirkey’s legal argument was helped by international law. Judges must interpret the Equality Act consistently with European laws such as the Race Directive and the Convention on Human Rights.
The Race Directive gives effect to the International Convention for the Elimination of all forms of Racial Discrimination 1965 (which the UK has signed up to) and that prohibits discrimination on the grounds of “descent”.
Art 14 of the Convention prohibits discrimination on the grounds of language, social origin, association with a national minority, property, birth or other status.
So, although Mrs Tirkey’s case doesn’t technically set new law (because only appeal cases do that), judges will be aware of it. For the next year it is all we have in this area and we see no reason why other caste discrimination employment tribunal hearings that come before the tribunals should not be decided the same way.Read More