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
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