Category Archives: Diversity

What’s Next For Employment Law – You Decide?

1622450 - thinker isolated over blueAll three major political parties have now published their manifestos ahead of the snap General Election to be held on Thursday, 8 June 2017, but what do the parties have in store for employment law?

The Labour Party was the first to divulge its plans in the document “For the Many, Not the Few,” which contains numerous pledges in relation to employment rights.

The Liberal Democrats followed closely with the release of its manifesto “Change Britain’s Future,” which includes an acknowledgement that they believe the Conservative Party will win the general election, but that the Liberal Democrats are the only effective opposition, particularly on issues such as Brexit.

Finally, the Conservative Party released “Forward Together,” which Theresa May claims “contains the “greatest expansion in workers’ rights by any Conservative Government in history.” 

We have covered some of the key points from each manifesto in relation to employment law below, but this is not a substitute for reading each manifesto in full, we also provide this update for information only and not with the aim of supporting any particular political party.


Conservatives Labour Liberal Democrats
The Conservatives pledge to maintain all rights given to workers by European Legislation post Brexit, for example working time, annual leave, TUPE legislation and anti-discrimination legislation to name a few. Labour has also included a statement that it will ensure that all rights given to workers by European Legislation post Brexit will be protected. Similarly, the Lib Dems have made a pledge to unilaterally guarantee the rights of existing EU nationals in the UK. They have also stated an intention to remain part of the single market and to retain the right to freedom of movement as far as possible due to the vital role that EU workers have to play in the UK economy.

Human Rights

Conservatives Labour Liberal Democrats
The Conservatives have vowed to retain the Human Rights Act during the Brexit process, but would consider amendments to this in due course. Labour intends to preserve the Human Rights Act. The Lib Dems will oppose any attempt to withdraw from the Human Rights Act.

Workers’ Pay & Executive Pay Packages

Conservatives Labour Liberal Democrats
The Conservatives aim to increase the National Living Wage (which applies to workers aged 25 and over and is currently set at £7.50 per hour), in line with the current target for this rate to reach 60% of the median earnings by 2020.They have also pledged to curb executive pay by making executive packages subject to annual votes by shareholders and to commission an investigation into share buyback to ensure that this is not being used to artificially hit companies’ performance targets with the aim of inflating executive pay. Labour pledges to increase the National Minimum Wage for all workers over the age of 18 to the same level as the National Living Wage (currently £7.50 per hour). The National Minimum Wage is expected to be £10 by 2020 for all workers over 18. Labour also proposes to increase prosecutions against employers who fail to pay the minimum wage, and to reinstate the Agricultural Wages Board to monitor wages (and employment standards) in the food manufacturing, farming and fishing industries. Labour intends to reform the pay ratios for public sector employers, and those that bid for public sector contracts, to ensure that the maximum ratio between the highest paid and lowest paid would be 20:1. Labour pledges to abolish the 1% public sector cap on pay increases. Finally, Labour intends to work to close the ethnicity pay gap by introducing equal pay audits requirements on larger employers. The Lib Dems intend to establish an independent review of how to set up a genuine living wage and roll this out across central Government and where possible, across other public sector bodies. They would also call for larger employers to publish data on the number of workers earning less than the living wage and the ratio between top and median pay. They intend to end the pay freeze in the NHS and the 1% pay cap on other areas of public sector pay and to update wages in line with inflation. Finally, the Lib Dems would require binding public votes by Board members on executive pay polices.

Employment Status

Conservatives Labour Liberal Democrats
The Conservatives pledge to continue the current review of employment status and the “gig economy” with the aim to ultimately ensure that the interests of employees working in the traditional master/servant employment relationship are properly protected. Details on how this will be achieved have not been specifically defined. Labour vows to widen employment protection to provide workers with the same protection currently given to employees. In addition, Labour intends to modernise the law on employment status to include creating a statutory definition for “self-employed,” “worker” and “employee” and to crack down on the potential misuse of the self-employed status. Labour intends to ban the use of Zero Hours Contracts so that every worker will receive a minimum number of guaranteed working hours. Finally, Labour intends to support young people at work by creating a target that will see the number of completed NVQ Level 3 apprenticeships double by 2022. It intends to make apprenticeships more accessible to all, and would require the provision of annual reports on completed apprenticeships to monitor access into the workforce. Labour has pledged to maintain the current apprenticeship levy, but will aim to make this more flexible. The Lib Dems pledge to modernise employment rights to make them “fit for the age of the gig economy.” In addition they intend to stamp out the abuse of Zero Hours Contracts and create a right for workers to request a fixed-term contract. The Lib Dems intend to consult on introducing a right to make regular hours of work contractual after a period of time.

Family Friendly Rights

Conservatives Labour Liberal Democrats
The Conservatives have suggested they would introduce a new right for workers to take between 13 and 52 weeks off work to care for a family member who requires full-time care, and to return to the same job afterwards. This is an extension of the current right to take Dependant Leave, which only allows employees to take very brief unpaid periods off from work to deal with unexpected incidents or emergencies. There is also an indication that the Party will introduce a new right to Child Bereavement Leave. No details have been provided about the length of this leave and whether it will be paid or unpaid. Labour intends to increase the scope of the current 30 hours of free child care to cover all 2 year olds and will consult on the possibility of extending this to 1 year olds. Labour also intends to increase the Statutory Paternity Leave period from a maximum of 2 weeks to 4 weeks, and to increase the rate of Statutory Paternity Pay (which is currently set at £140.98 per week). Labour also intends to extend the period of Statutory Maternity Pay to 12 months from the current 39 weeks. Finally, Labour intends to consult on introducing legislation on Statutory Bereavement, however the full details of the scope of this have not yet been disclosed. The Lib Dems intend to provide 15 hours a week of free childcare to all 2 year olds and to children of all working families from the end of paid Statutory Maternity/Paternity Leave or Shared Parental Leave, with an ultimate aim to increase this to 30 hours. They intend to make the right to make a flexible working request and to take Statutory Paternity Leave a “day one” right as opposed to the current legislation that requires an employee to have 26 weeks’ continuous employment with an employer before gaining these rights. In addition, the Lib Dems intend to make the right to take Statutory Shared Parental Leave a “day one” right and also introduce a one month “use it or lose it” period for fathers to encourage them to take this type of leave.

Worker Representation & Trade Unions

Conservatives Labour Liberal Democrats
The Conservatives aim to improve worker representation at Board level for listed Companies by either nominating a Board Director from the workforce, creating a formal Employee Advisory Council to the Board or assigning specific responsibility for employee representation to a designated Non-Executive Director. Labour intends to repeal the Trade Union Act 2016, which covers specified turnout requirements and balloting requirements before industrial action and to replace this with a “sectoral collective bargaining regime.” Labour will also give all employees the right to receive union representation, guarantee all unions’ access to the workplace, only award public contracts to employers that recognise a union and look at introducing electronic balloting. Finally, Labour intends to launch a public enquiry on Trade Union blacklisting. The Lib Dems aim to encourage employee ownership by giving staff in listed companies with more than 250 employees the right to request shares to be held in trust for the benefit of the workforce. They would also continue the drive for Boardroom diversity by pushing for at least 40% of female boards in FTSE 350 companies and improving ethnic minority Boardroom representation.

Discrimination & Diversity

Conservatives Labour Liberal Democrats
The Conservatives intend to extend the scope of the Equality Act 2010 to cover discrimination against those suffering from mental health conditions that are “episodic and fluctuating” to cover people suffering from depression, anxiety and bi-polar disorder. Currently, the legislation provides that certain conditions are “deemed disabilities” such as blindness and cancer and protection is automatically granted. In other cases, an individual would have to demonstrate that they have a physical or mental impairment that has an adverse effect on their ability to carry out day-to-day tasks and that effect is long term. The suggestion is that a Conservative Government would potentially classify depression, anxiety and bi-polar disorder as “deemed disabilities” so that people suffering from these conditions are automatically protected under the Equality Act 2010.There is also a reference to incentives being offered to employers to employ vulnerable workers such as 1 year’s relief from Employers National Insurance Contributions. Finally, the Conservatives propose an extension to the current gender pay gap reporting regime, which came into force on 6 April 2017, by requiring employers to publish more data than is currently required. This scope of this has not been clarified. There is also a suggestion that race gap reporting could be adopted. Labour intends to enhance the Equality Act 2010 to make it easier to challenge disability discrimination at work. It would also consult on reform to the Gender Recognition Act and the Equality Act 2010 to better protect transgender people by changing the protected characteristic of “gender assignment” to “gender identity.” Labour intends to increase pay equality by introducing an independent body to ensure that the gender pay gap reporting obligations are complied with. The manifesto also provides a proposal to audit all proposed legislation to assess its potential impact on women before it is introduced and to strengthen protection for women against unfair redundancy. The Lib Dems aim to extend the current protection against discrimination to cover gender identity and expression and not just gender reassignment. They would also outlaw caste discrimination. The Lib Dems intend to extend the gender pay gap reporting scheme in the private sector to include a requirement to publish information on gender, ethnicity, and LGBT statistics. They would also require name blind recruitment in the public sector and encourage this in the private sector, and will aim to improve diversity in public appointments by including a presumption that every shortlist should include at least one black/ethnic minority candidate. Finally, the Lib Dems would guarantee the freedom to wear religious or cultural dress in the workplace.

Immigration & Modern Slavery

Conservatives Labour Liberal Democrats
The Conservatives aim to increase the Immigration Skills Charge from £1,000 per annum to £2000 per annum, which is levied on employers employing migrant workers. They will also review the application of the Modern Slavery Act to strengthen measures against exploitation of vulnerable workers. The Labour manifesto includes a statement that Labour is committed to working with Trade Unions to ensure there are fair rules to prevent exploitation of migrant workers. The Lib Dems aim to strengthen companies’ responsibility for supply chains to assist in tackling modern slavery.

Tribunal Fees

Conservatives Labour Liberal Democrats
The Conservative manifesto makes no reference to Employment Tribunal fees. Labour aims to abolish Employment Tribunal Fees (which were introduced in the summer of 2013) and extend the time period for bringing a maternity related claim from 3 months to 6 months. The Lib Dems also aim to abolish Employment Tribunal Fees (which were introduced in the summer of 2013).

Other Provisions

Conservatives Labour Liberal Democrats
The Conservative manifesto contains a suggestion that a Conservative Government will introduce a right to request unpaid time off work for training. It also covers protection for Occupational Pension Schemes whereby the Pensions Regulator will be given greater power to review acquisitions that could potentially have an impact on an existing Occupational Pension Scheme, and to issue fines and Director disqualifications to those wilfully leaving a pension scheme under resourced. Criminal sanctions are also being considered. Labour intends to introduce 4 new Bank Holidays to increase a worker’s statutory minimum holiday entitlement to 32 days per annum. The Lib Dems aim to provide more protection to NHS whistleblowers – specific details are lacking.

Is Caste Discrimination a Workplace Consideration?


DiscriminationSUMMARY: Chandhok and another v Tirkey establishes that race discrimination can include caste discrimination.

Caste discrimination in the workplace

The recent Employment Appeal Tribunal (“EAT”) decision in Chandhok and another v Tirkey (“the Tirkey case”) caused a bit of a stir. Whilst many of us focused on the significant award of nearly £184,000 made to the claimant, a domestic worker, in relation to her minimum wage claim, the case was of greater importance as it considered the issue of caste discrimination in the workplace. Until now there has been much debate as to whether a worker who had suffered caste discrimination had the right to legal redress.

Caste usually refers to social levels in certain cultures and racial groups. The impact is that individuals’ positions in society are fixed by birth or occupation and are hereditary. For example, an individual’s caste could be determined by the occupation of their forefathers.

In 2010 the Government-commissioned report on caste discrimination (“the 2010 report”) recognised that caste discrimination could be an issue for employers. This was the case even though from a legal perspective the concept was not expressly addressed in the Equality Act 2010, which only makes reference to “race” which includes “colour; nationality; ethnic or national origin”.

Examples of workplace caste discrimination

The 2010 report did however provide examples of workplace caste-based unfair treatment, bullying and harassment. These included:

  • Exclusion from work social events and networks.
  • Humiliating behaviour such as “women of so called upper castes not taking water from the same tap from where the so called lower caste person drinks”.
  • Bullying and harassment by superiors which also affected promotion, task allocation and dismissal.  Examples given included:
    • Not permitting someone of a low caste to take holiday when requested.
    • An individual being promoted to manager but his team not accepting his authority because he was of lower caste than them.
  • Recruitment – if employees are taken on by recommendation, this could be because they are of the same caste.
  • Task allocation – a higher caste manager was alleged to allocate better paid work to higher caste employees.

The equal treatment principal

Whilst employers are fully familiar with the legal requirement that all workers must be treated equally regardless of a protected characteristic under the Equality Act 2010, caste discrimination has always been a grey area.

Caste discrimination is a type of race discrimination

The Tirkey case has however provided some long awaited clarity, confirming that caste discrimination can be classified as a type of race discrimination. This case also provides a clear (if extreme) example of caste discrimination in the UK – on the particular facts it was found that Ms T was the victim of unlawful harassment on the ground of her race (as well as other successful claims).

The facts of this case are as follows:

  • Ms T worked for Mr and Mrs C as a domestic worker. Her caste (which is inherited and immutable) is the Adivasi, which is known as a “servant caste”. Adivasis have been recognised as being at the lowest point of almost every socio-economic indicator, and are frequently equated with Dalits (once known as “untouchables”). Ms T claimed that Mr and Mrs C treated her badly and in a demeaning manner, and that this was in part because of her low status which was infected with considerations of caste.
  • The employment tribunal was told that over a four and a half year period Ms T:
    • worked an 18-hour day, seven days a week;
    • slept on a foam mattress on the floor;
    • was prevented from bringing her Bible to the UK and going to church;
    • had her passport held by Mr and Mrs C and she had no access to it;
    • was not allowed to call her family; and
    • was given second-hand clothing instead of choosing her own clothes.

This is (we hope) an extreme situation which does not involve a normal employer/employee relationship. Employers should however be aware that caste discrimination can and does occur in many business situations.  The 2010 report stated that caste awareness in Britain is concentrated amongst people with roots in the Indian subcontinent, who comprise five per cent of the population.

Equality and diversity initiatives can be beneficial

Employers with robust management initiatives around equality and diversity should be in a position to prevent unlawful discrimination on the grounds of a worker’s caste.  Main considerations for any equality and diversity strategy should involve the following:

  • Having a top level commitment to equality and diversity in the workplace.
  • Ensuring there is an equal opportunities policy in place which makes it clear that discrimination, bullying and harassment will not be tolerated. Employees should be made aware of the existence of the policy and the likely sanctions for breaching it.
  • Making sure equality training is an integral part of any training programme.
  • Analysing business decisions and practices which could have the effect of discriminating on the grounds of any protected characteristic including race (caste).  Areas for review include: discipline and grievances; recruitment; promotion; pay and reward; terms and conditions; and access to training.
  • Investigating complaints of discrimination, bullying and harassment under the grievance procedure or, where relevant, the anti-harassment and bullying policy.
  • Having strategies which ensure that the workforce is diverse and is representative of the areas/communities from which it is drawn.
  • Monitoring the effectiveness of the equal opportunities policy.
  • Taking remedial action where inequality is identified.

Those businesses that strive to remove workplace bias will find themselves much better off in terms of staff morale, productivity and access to untapped talent.


Chandhok and another v Tirkey [2015] IRLR 195

Contact details

For more details about discrimination in the workplace, developing workplace equality and diversity strategies and training please contact:

+44 (0) 1604 871143

This update is for general guidance only and does not constitute definitive advice.

Religious Belief v Sexual Orientation

150619 Religious belief v Sexual Orientation - Protected CharateristicsSUMMARY: When two protected characteristics clash, an employer must tread carefully. The recent case of Mbuyi v Newpark Childcare demonstrates some of the hurdles an employer must overcome before dismissing where the protected characteristics of religious belief and sexual orientation conflict.


Under the Equality Act 2010, individuals are protected from detrimental treatment because of their religious belief or sexual orientation (amongst other characteristics).

Religious belief and sexual orientation are two characteristics which have the potential to conflict, as some religious groups have strong beliefs on homosexuality. An employer has the unenviable task of balancing these competing rights.

The Tribunal Decision

The tribunal held in the case of Mbuyi v Newpark Childcare that Miss Mbuyi had been discriminated against because of her religious belief.

Miss Mbuyi was dismissed for gross misconduct, being her harassment of another employee (“LP”). The dismissal letter referred to her entering into a conversation in the workplace with LP and the topic moved on to the issue of homosexuality… during that conversation Miss Mbuyi stated that homosexuality was a sin. The dismissal letter also upheld an allegation that Ms Mbuyi had, 4 months previously, made “inappropriate comments” to LP concerning her being a lesbian.

Miss Mbuyi did not have the required 2 years’ service to bring an unfair dismissal claim.

Where did the employer go wrong?

The tribunal identified a number of ways in which the employer acted, which lead to its conclusion that the employer discriminated against Miss Mbuyi. The following are key for employers to note:

  1. The employer did not conduct an investigation.

    The employer invited Miss Mbuyi straight to a disciplinary hearing without having conducted an investigation. If the employer had conducted an investigation it might, for example, have seen an email from an employee which put forward a version of events of a conversation about religion and sexual orientation. The tribunal commented that this email had not, however, found its way to a director at the disciplinary hearing by the time of the disciplinary hearing or the time of the dismissal.

    The employer could also (amongst other matters) have investigated Miss Mbuyi’s contention that the other employee had approached her, not vice versa, but it did not do so.

  2. The employer did not put all of the allegations it relied upon to dismiss Miss Mbuyi to Miss Mbuyi.

    For example, the employer asked Miss Mbuyi in the disciplinary hearing “Do you think LP is wicked?” Miss Mbuyi responded “yes we are all wicked”. The employer later linked this to homosexuality in the dismissal letter, but did not do so at the time of the disciplinary hearing. It did not appear that Miss Mbuyi was ever asked if she stated in terms that homosexuality was, in her belief, a sin.

  3. The employer did not appear to take into account the evidence that LP approached Miss Mbuyi to ask her about religion, rather than Miss Mbuyi approaching LP.  Miss Mbuyi was clear in this case that LP had:

    a. first raised Miss Mbuyi’s church;
    b. first raised her own sexuality and lifestyle;
    c. asked if she would be welcomed at church; and
    d. specifically asked what Miss Mbuyi believed God thought about her living arrangements.

  4. The employer did not take any action against LP. The tribunal commented that both could have been asked to confirm that discussing matters of religion, sex and sexuality at work was inappropriate and would not be repeated.
  5. The employer did not refer to Miss Mbuyi’s gift of another religious book to another employee, which the tribunal commented would tend to support the proposition that Miss Mbuyi would take opportunities to share her faith with anyone.
  6. The employer’s reasoning in the dismissal letter did not appear to be supported by evidence. It stated that she had specifically targeted LP because of her sexual orientation and that this constituted harassment. The tribunal commented that this was “an untenable finding on the evidence of [Miss Mbuyi], which was allegedly all the [employer] considered”. The employer should ensure that the evidence supports its conclusion.
  7. The employer did not give Miss Mbuyi a warning.
  8. The same person was heavily involved in both the dismissal and appeal.

What should an employer do?

Following this case, top tips for an employer who is considering dismissal where a protected characteristic is an issue are as follows:

  1. Carry out a reasonable investigation.
  2. Put all allegations to the employee which may be relied upon when dismissing.
  3. Do not make any stereotypical assumptions.
  4. Ensure that points in the employee’s favour, as well as those which go against the employee, are taken into account and referenced in any dismissal letter.
  5. If a response in a disciplinary hearing could be a reason for dismissing an employee, this allegation should be put to the employee before a decision to dismiss them is taken.
  6. Treat employees consistently; if two employees are involved in an inappropriate conversation, consider whether disciplinary action should be taken against both of them.
  7. Be clear about the behaviour that is expected from employees and try to seek agreement about appropriate behaviour going forwards.
  8. Consider whether a warning should be given to an employee rather than dismissing them.
  9. If dismissal is a possible outcome, ensure that the employee is aware of this before the disciplinary hearing takes place.
  10. Ensure that the reason for dismissing the employee is supported by evidence.
  11. Different people should hear the disciplinary hearing and any appeal.

Final thoughts

The reason for dismissal is absolutely key when concepts of religious belief and sexual orientation are in issue. It is interesting that the tribunal commented in this case that it may be that the employer would have been justified in dismissing for Miss Mbuyi’s refusal to actively engage in reading certain literature or otherwise promoting family units other than those formed by husband and wife. Whether this could be justified would depend on all the circumstances.

It should be noted that this case is only an employment tribunal decision and is therefore not binding. A case with similar facts could be decided in a different way.


Mbuyi v Newpark Childcare (Shepherds Bush) Ltd ET/3300656/14

Contact Details

For more details about issues of religion, belief, sexual orientation or other protected characteristics please contact:

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.