Category Archives: Equality Act 2010

Farewell EU – What Now?

Union Jack-01

“The will of the people must be respected” says Prime Minister David Cameron on the outcome of the UK referendum on membership of the EU. One can’t escape the view that this should read “the will of the people must be interpreted.”

As of 6.00 am today, we as a nation appear to have become victims of unanticipated consequences, and are now at the mercy of outcomes that are not the ones foreseen and intended by our purposeful actions. I fear that full appreciation of the consequences of our actions will not be achieved for some time as predictions indicate that it will take at least 2 years to achieve disentanglement from our European partners.

In the immediate haze of global reaction, currency free-fall, stock exchange hysteria and concern about future trading conditions with the remaining 27 member states of the European Union, there is a risk that UK businesses may defer undertaking a strategic review of the impact on their workforce resulting from Brexit. In the short term, the biggest risk to workforce productivity will be uncertainty, particularly for those members of the workforce that are EU nationals and those that are British nationals working throughout the EU, currently estimated to be around 1 million. The uncertainty could manifest itself in key individual members of the workforce exiting of their own accord to seek greater stability elsewhere. It is essential that individual businesses develop effective operational and communication strategies without delay!

As UK businesses grapple with the challenges of negotiating commercial trade agreements in the new post EU membership world of tariffs and barriers to entry, it is a realistic possibility that revenue streams will become less profitable and this may inevitably lead to a rebalancing of profit margins by reducing headcount. A strategic review now, if operational effectiveness is to be maintained, will be well worth the effort.

And what, I hear you cry, of existing EU Legislation? The short answer is that a lot of EU laws are already incorporated into our domestic legislation through Acts of Parliament and Regulations, while there may very well be some tinkering in the medium to long term, it is unlikely, in this employment lawyer’s view, that our exit from the EU will result in any wholesale overhaul of our domestic employment legislation.

When the dust finally settles on the UK’s exit from the EU, the issue of Border controls and immigration status will become a further challenge for UK business whether domiciled in the UK or within the EU and using UK labour. While this may very well be 2 years away, businesses are encouraged to consider the implications now and devise a strategy to deal with potential key skills loss, recruitment and succession planning.

For advice and assistance with any employment law, HR or corporate immigration issue contact FG Solicitors on 01604 871143 or visit our website at www.fgsolicitors.co.uk for further information.

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.

Cases

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:

fgmedia@floydgraham.co.uk

+44 (0) 1604 871143

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

Roll out of Fit for Work Service

FGS - Fit for WorkSUMMARY: Fit for Work Service goes live for GP referrals. Employer referrals will be available by autumn 2015.

Fit for Work (FFW) Service

The FFW Service will provide a free and confidential occupational health assessment service, as well as general health and work advice to employees, employers and GPs.

The aim is to:

  • help an individual stay in or return to work and prevent sickness absence recurring; and
  • allow an employer to manage the impact sickness absence can have on its business.

How will it work?

All GPs can now refer employees for an occupational health assessment to obtain specialist independent and objective advice.

Whilst employers will not be able to directly use the referral scheme until later this year (autumn 2015), they could start to receive return to work plans from employees who have been referred by their GPs.

There is no restriction on how many times employees can be referred. An employee can however only be referred for one assessment in any 12 month period.

When will the referral be triggered?

A referral will be possible once the employee has been absent for four weeks. If clear at the outset that the employee will be off work for more than four weeks, then an early referral can be made.

An employer can only refer after four weeks. The employee’s explicit and informed consent to not only the referral, but also to their personal information being shared, will need to be obtained.

When making referrals, employers do not need to contact the employee’s GP before doing so.

Any decision to refer will be dependent on the employee’s consent and that there is a reasonable likelihood that the employee is going to be able to return, at least on a phased basis.

Where there are duplicate referrals (GP and employer) they will be combined.

What will the FFW Service provide?

Once the referral has been made, the following will occur:

  • An occupational health assessment will be arranged, which will focus on any health, work and social factors which may be preventing the employee from returning to work. The first health assessment will take place within two working days of receipt of the referral.
  • A return to work plan will be prepared. The plan will address any factors which have been identified, as well as providing recommendations to support the employee in their recovery. The employee can choose to share the plan with their employer and GP. The employer can decide whether to implement the changes.
  • The employee will also be allocated a case manager to support them in their return to work.
  • The case manager may contact the employer during the preparation of the return to work plan, particularly if they need to understand the workplace context or where the employee’s relationship with the employer has been identified as an obstacle to the employee’s return. There may be further contact with the employer about the implementation of the return to work plan.

GPs, employees and employers will also have access to more general advice via the telephone and a website.

Are there any other benefits for the employer?

A tax exemption of up to £500 (per annum for each employee) on payments for medical treatment recommended by the FFW Service, or an employer arranged occupational health service will also be available to employers.

Does this mean that as an employer we do not have to follow any absence management procedures?

The FFW Service is intended to complement rather than replace existing occupational health provisions.

If you are considering dismissing an employee who has been off sick long term, it is important that a proper process is still followed, including obtaining appropriate medical advice, discussing this advice with the employee and considering alternative employment. Care also needs to be taken to ensure that if the employee has a disability, the obligations under the Equality Act 2010 are satisfied, which may include the need to make reasonable adjustments to the individual’s work environment or duties to support a return to work.

Whilst employers will still need to follow fair procedures and act reasonably and in a non-discriminatory way, it is hoped that early independent intervention under the FFW Service will lead to more employees returning to work sooner. The FFW Service will be particularly useful for those employers who do not have ready access to occupational health advice.

Contact Details

For solutions to managing your workplace sickness absence problems, please contact us:

fgmedia@fgsolicitors.co.uk

+44(0) 808 172 93 22

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.

Background

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.

Cases

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:

fgmedia@fgsolicitors.co.uk

+44 (0) 808 172 93 22

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

Dress Codes – Avoiding Discrimination Claims

Dress Codes - Avoiding Discrimination ClaimsSUMMARY: In Begum v Pedagogy Auras UK Ltd, it was held that a nursery had not discriminated against a Muslim woman who wanted to wear a jilbab to work, when it required staff not to wear garments that might constitute a tripping hazard to themselves or the children in their care.

Background to case

A trainee nursery assistant (Ms B) was an observant Muslim whose religious belief required her to wear a garment that reached from her neck to her ankles (a jilbab).  After a half-day trial, Ms B was invited to interview.  She wore a jilbab on both the trial day and the interview day.  At the time of the interview, the nursery asked her whether she might wear a shorter jilbab to work.  The nursery indicated to Ms B that whatever garment she wore, it could not constitute a tripping hazard for children or staff.

Ms B subsequently refused to take the job and reported that she had been insulted by the nursery’s approach to uniform, which went against her religious beliefs.

Ms B brought a claim in the employment tribunal for discrimination on grounds of religion or belief.

Decision

The Employment Appeal Tribunal upheld the decision of the employment tribunal which was that Ms B’s discrimination claim was unsuccessful.

It was noted that there was another member of staff at the nursery who wore a jilbab and 25% of the workforce were Muslim women.  It was clear that this was a workplace in which jilbabs were permitted, so long as they did not constitute a tripping hazard.  The Employment Tribunal had found that at no point was Ms B told she could not wear a jilbab while working at the nursery.

The nursery demonstrated a tolerance towards employees’ religious beliefs, but had to balance a potential employee’s right to manifest their religious belief with its health and safety obligations and did so successfully in this case; it was found that it had not discriminated against Ms B.  However, in other instances, the enforcement of a dress code can prove more problematic for employers given the protection that employees have under the Equality Act 2010.

Law

The Equality Act 2010 essentially gives employees the right not to be directly or indirectly discriminated against on grounds of a protected characteristic.  Protected characteristics include age, sex, race, religion or belief, sexual orientation, gender reassignment, marriage or civil partnership, pregnancy or maternity, race and disability.

Ms B alleged that she had been indirectly discriminated against on grounds of the protected characteristic of religion or belief.

Indirect discrimination on grounds of religion or belief occurs where:

  • An employer applies to an employee a provision, criterion or practice (PCP).
  • The employee has a particular religion or belief.
  • The employer applies (or would apply) that PCP to persons not of the same religion or belief as the employee.
  • The PCP puts or would put persons of the employee’s religion or belief at a particular disadvantage when compared to other persons.
  • The PCP puts or would put the employee at that disadvantage.
  • The employer cannot justify the PCP by showing it to be a proportionate means of achieving a legitimate aim.

Although in this case, it was held that there was no discriminatory PCP (i.e. no indirect discrimination), if there had been a discriminatory PCP, the employer may well have been able to justify the discrimination by showing that that:

  • it had a legitimate aim (for example, compliance with health and safety obligations); and
  • the means chosen (the requirement to wear a garment which did not present a tripping hazard) for achieving that objective were proportionate.

What can employers require in terms of dress code?

The requirements an employer is permitted to include in its dress code are likely to depend on the nature of an employer’s business, the extent to which there are health and safety hazards in its work, the level of employees’ contact with customers and any requirement to wear a uniform.

An employer should keep potential issues of discrimination in mind when formulating a dress code. Regard should be had to possible religious sensitivities, and also to the principle that, while an employer may have different rules for men and women, the rules should not be more stringent for one group than another.

In this case, it was found that the employer did not ban ankle-length jilbabs but that Ms B had worn a flowing garment.  The employer’s concern was that this could constitute a tripping hazard and was acutely aware of its health and safety obligations.  If the employer had banned jilbabs completely, this is likely to have been indirectly discriminatory; the employer would then need to justify the indirect discrimination and such a ban may not have been a proportionate means of achieving a legitimate aim (see above in relation to “law” for justifying discrimination).

An employer may well succeed in justifying such indirect discrimination on the grounds of health and safety where an employee will, for example, be working with children.  However, there may be some work environments where there are no health and safety considerations which could justify such a ban.

It is likely to be more difficult for an employer to be able to justify not permitting an employee to wear a head scarf (hijab) than a full length garment (jilbab).  Although not UK law, Abercrombie & Fitch discovered this to its detriment when there was a recent American Supreme Court decision against it following its refusal to hire a Muslim woman because she wore a head scarf.  Abercrombie and Fitch said that the scarf clashed with its dress code, which called for a “classic East Coast collegiate style”.  We consider this argument would be unlikely to justify discrimination if it occurred in the UK.

We advise that all employers consider whether to have a written dress code policy.  The policy could, for example, include a provision that employees may wear appropriate religious and cultural dress unless it creates a health and safety risk to the employee or any other person.

Cases

Begum v Pedagogy Auras UK Ltd (t/a Barley Lane Montessori Day Nursery) UKEAT/0309/13

Contact Details 

For more details about dress code and if you would like us to draft a policy for your business, please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 1604 871143

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

Paying for private psychiatric treatment is reasonable adjustment

8080232_mSUMMARY: An Employment Appeal Tribunal confirms that a reasonable adjustment would have been for the employer to pay for psychiatric treatment for an employee

Legal Background

The Equality Act 2010 imposes a duty on employers to make reasonable adjustments to help disabled employees in certain circumstances.   This includes where a disabled person is placed at a substantial disadvantage by an employer’s provision, criterion or practice (PCP).  The PCP in this case was that the employee be able to return to work performing the essential functions of her role.

This case was decided under the Disability Discrimination Act 1995 and the code of practice in force in 2010, but the Equality Act 2010, now in force, is not materially different.

Facts of this case

Mrs B, a reception and finance manager, went off sick with work-related stress and severe depression on 4 May 2010 and never returned to work.

Her employer asked for her to be referred to a private consultant psychiatrist, Dr P, who she saw in August 2010.  Dr P suggested specialist cognitive behavioural therapy and 6 psychiatric sessions at a cost not exceeding £750, saying that there would be no guarantee that she would be able to return to work but he was hopeful that would be the outcome.

The employer asked Dr P further questions, to which he responded in October and then the employer asked more questions.  Before Dr P responded to these further questions, Mrs B resigned on 23 November 2010, stating that the employer had ignored Dr P’s recommendations and claiming disability discrimination (failure to make reasonable adjustments) and unfair constructive dismissal.

The Employment Appeal Tribunal’s (EAT) decision

The EAT upheld the Employment Tribunal’s decision that the employer had failed to make reasonable adjustments by failing to refer Mrs B to private psychiatric services and/or counselling by October 2010 at the latest.

The EAT considered that the reasonable adjustments were job-related because they involved payment for a specific form of support to enable Mrs B to return to work and to cope with the difficulty she had been experiencing at work.

It was not sufficient that the employer had offered Mrs B a different job at a substantially reduced salary.

The EAT also noted that at no time between 19 August and 23 November 2010 did the employer take any steps to resolve with Mrs B her concerns.  Instead, there was effective silence from July 2010.

What does this mean for employers?

Employers should be aware that both mental and physical illnesses can constitute disabilities.  If there is a possibility of a disability and suggestions are made as to how the employee can be helped, even if it is uncertain that the assistance will result in the employee being able to return to work, these should be given serious consideration.

This consideration should include consultation with the employee, who should not be left without communication once they are on long term sick leave.  The employer should have very good reasons for not making suggested reasonable adjustments and should be aware that such adjustments can include paying for private medical treatment, even if this may be available on the NHS.

Case: Croft Vets Ltd v Lynda Butcher (UKEAT/0430/12/LA)

Hazel Robbins, Solicitor

Contact Details

For more details about this case or making reasonable adjustments please contact:

fgmedia@floydgraham.co.uk

+44 (0) 1604 871143

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

Retirement Age of 65 Could Be Justified

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SUMMARY: Following the decisions of the Employment Appeal Tribunal, Court of Appeal and Supreme Court, an Employment Tribunal has found that the retirement age of 65 for Mr Seldon was justified in all the circumstances. Continue reading

BNP Councillor’s dismissal violated ECHR freedom of association.

Summary: The European Court of Human Rights has criticised the failure of UK law to protect those with less than one year’s service where they are dismissed because of their membership to a political party. Continue reading