Category Archives: Workplace

Banning the Wearing of Muslim Headscarfs by Women in the Workplace Now Lawful!

68416330_lThe power of punctuation is alive and well, and proof if it were needed that the devil is always in the detail!

It would appear that the media have, over the past few days, encouraged a view that banning the wearing of Muslim headscarfs by women in the workplace is now lawful. While this is not quite “Fake news on a Trumpian scale,” it cannot be considered an accurate statement of the law either.

The igniter for these headlines is the recent European Court of Justices’ (“ECJ”) decision in the case of Achbita. In short, the case concerned a Belgian Company’s dress code that prevented employees from wearing any visible religious, political or philosophical symbols. The dress code was used as a basis for preventing a Muslim employee from wearing an Islamic headscarf while at work. The Court decided that, as the dress code applied to all religions, Ms Achbita was not treated less favourably on the grounds of her race.

Before we begin basking in the euphoria of premature conclusions that a blow has been struck for common sense, it is worth noting that the Court, unprovoked, added that it was possible for this position of neutrality adopted by the employer to be indirect discrimination.

By way of example, if Ms Achbita had not been a customer facing employee, preventing her from wearing her headscarf at work may amount to discrimination if the employer could not objectively justify the ban.

Employers need to be alert to the fact that although having a dress code prohibiting the wearing of all religious symbols in the workplace may provide a defence against a claim of direct discrimination, it will not by itself defeat all discrimination claims associated with the wearing of religious symbols. It is also worth noting, although outside the scope of this article, that if the dismissal was because of Ms Achbita’s insistence on wearing her headscarf in a customer facing role, exploring whether she may be placed in a non-customer facing role may affect, under English Law, the fairness of the employer’s decision to dismiss.

Consider for instance the case of Bougnaoui, here the ECJ decided that it was unlawful for an employer to accept a customer’s request not to be served by an employee wearing an Islamic headscarf. The Court did not consider the wishes of a customer to be a “genuine and determining occupational requirement,” which would have justified the discrimination.

There will always be a balance to be struck between the interests of the employer and the detrimental impact on the employee. In the case of Bougnaoui the ban amounted to direct discrimination because it was imposed in response to a customer’s objection rather than being based on any existing dress code designed to achieve neutrality.

As a general approach, employers should treat employees’ requests to circumvent a dress code for religious reasons carefully, sensitively and respectfully; and should consult with the employees with a view to reaching a satisfactory solution. This may very well prevent an employer from having to defend itself against such claims.

Take a Note: Workplace Dress Code Policies

Dress Codes - Avoiding Discrimination Claims

SUMMARY: Readers may remember that, last year, Emily Blunt criticised the Cannes film festival when a woman was denied entry to a screening for wearing flat shoes and that in May of this year it was reported that a woman was sent home from work after refusing to wear high heels. With recent statistics showing that women are buying more trainers than high heels it may be fair to assume that flat shoes are replacing heels as the woman’s shoe of choice. But how does this impact on the workplace and how might organisations deal with, what might be termed, more casual attire being worn by its employees? This is where the use of a dress code policy comes into play. For those employers considering the implementation of a dress code policy we have set out below five key considerations which should be taken into account when deciding the dress code that best suits your organisation’s requirements.

Workplace Dress Code Policies

  • Make dress codes relevant to roles – consider the reasons behind the code.
  • Ensure the code is non-discriminatory, applying equally to men and women. Different standards of dress can be identified as long as the standards, for example for males and females, are equivalent and applied equally.
  • There could be a requirement to cover tattoos and body piercings if there is a sound business reason for this e.g. a customer facing role.
  • Workers may want to wear items that manifest their religious faith e.g. a hijab or kippah. It may be possible to restrict this, but there could be discrimination issues – seek legal advice!
  • The dress code should be in writing and communicated to all staff. Consultation would help to increase overall adherence.

CONTACT DETAILS

For more details about workplace dress code policies, please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 1604 871143

Sports Direct: Failure to Pay National Minimum Wage – A Business Model With Exploitation at its Heart? (Part 1)

14184143 - green grass  uk pound symbol against blue skySUMMARY:  The Sports Direct founder, Mike Ashley, faced the Business Innovation and Skills (“BIS”) Select Committee on 7 June 2016 for an evidence session into the working practices adopted by Sports Direct.  A month later, it was widely reported that Sports Direct’s profits had been hit.  Mr Ashley’s fortunes have not improved as this month it has been announced that shareholders will be asked to vote on whether there should be an independent workplace review – we will have to wait until September to see how this latest chapter unfolds.

But how did it come to this?

To recap, Mr Ashley received intense criticism stemming from the Guardian Newspaper’s investigation at the end of 2015, which uncovered allegations that his Company:

  1. Failed to pay its workers the minimum wage;
  2. Engaged a significant proportion of staff via zero hours contracts and short term hours agency worker agreements;
  3. Created a culture of fear throughout its workforce due to arbitrary and outdated disciplinary practices; and
  4. Conducted daily physical security searches of employees.

On the back of the ever increasing publicity of how some high profile companies treat their employees, we have produced a two part series to enable you to assess whether your company is inadvertently making the same mistakes as those reportedly made by Sports Direct.  The first in this series explores the allegation that Sports Direct failed to pay its workers the minimum wage and sets out the law behind this complex issue.

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THE ALLEGATIONS:

HM Revenue and Customs (“HMRC”) are currently investigating allegations that Sports Direct paid its workers less than the National Minimum Wage (“NMW”) effectively saving the Company millions of pounds per year.

The underpayment allegedly arose as a result of workers being forced to undergo compulsory rigorous security checks at the end of their shifts as a theft prevention measure, adding as much as 15 minutes onto their working day (or up to one hour and fifteen minutes to their working week), which is unpaid.

In addition, it is also alleged that workers faced a 15 minute deduction from their pay for “clocking on” 1 minute after their designated start time, even if they actually arrived on site on time.

WERE THE SPORTS DIRECT STAFF WHO WEREN’T EMPLOYEES ENTITLED TO NMW?

All employers are obliged to pay the NMW regardless of their size, and the NMW applies to all “workers” ordinarily working in the UK who are over compulsory school leaving age, not just employees.  This includes agency workers and apprentices.

WHAT ARE THE CURRENT NMW RATES?

From 1 April 2016, there are now 5 rates of NMW:

CATEGORY   RATE (£)
National Living Wage Workers aged 25+

7.20

Standard Adult Rate Workers aged 21-24 (inclusive)

6.70

Development Rate Workers aged 18-20 (inclusive)

5.30

Young Workers Rate Workers aged under 18 but above the compulsory school age

3.87

Apprentice Rate Apprentices either:

  1. Under the age of 19; or
  2. Aged 19 or over, but in the first year of their apprenticeship

3.30

HOW DO I DETERMINE IF MY COMPANY IS PAYING THE NMW?

In order to determine whether the NMW is being paid to your workers, you will need to determine their average hourly rate of pay.

On the face of it this calculation seems quite a simple one – sadly, this is not so. The average rate of pay is calculated by dividing the total amount of “money payments” that a worker earns across the relevant reference period, by the number of hours the worker has worked during that same reference period. However, what amounts to a “money payment” frequently trips up the uninitiated – see below.

The number of hours worked (known as “working time”) can also prove a tricky area for companies and one which has given rise to a raft of case law on its own. This is dealt with below.

Turning then to the relevant reference period, this is usually one month and cannot be greater than one month. However, if the worker is paid weekly or daily, then this is their reference period.

What Money Payments Should Be Considered?

Companies must exercise caution as some payments cannot be included as “money payments” for NMW purposes:

EXAMPLES OF INCLUDED PAYMENTS Basic salary
Bonus**An annual bonus paid for example in December, will usually only count for the December reference period
Commission/Incentive Payments Based on Performance
Accommodation Allowances
Allowances Paid by HMRC Dispensation Agreements
 

EXAMPLES OF EXCLUDED PAYMENTS

Benefits in Kind
Loans Given by the Company
Advances of Wages
Pension Payments
Lump Sum Payments on Retirement
Redundancy Payments
Tribunal/Settlement Awards
Premiums Paid for Overtime/Shift Work
Expenses
Tips and Gratuities

What About Deductions From Pay?

Certain deductions from a worker’s pay can reduce their pay for NMW purposes, including deductions made by a company in respect of expenditure in connection with carrying out their duties (e.g. the cleaning or purchase of uniforms). After these deductions have been taken into account the worker must still be left with at least the NMW.

Another famous retailer, Monsoon, was ordered to pay more that £100,000 to its employees in 2015 as a result of its practice of requiring staff to wear Monsoon clothes at work and deducting the discounted cost of the clothes from their wages. After the deduction, staff were left with less than the NMW.

Conversely, certain deductions do not reduce a worker’s pay for NMW purposes such as a deduction permitted by the contract between the Company and the worker due to misconduct.

In the case of Sports Direct, it has been reported that deductions were made from workers’ pay for lateness. If the deductions were not permitted by contract, the deduction would reduce the workers’ pay for NMW purposes.

A deduction of this nature could also amount to an unlawful deduction of wages, allowing the worker to bring a claim in the Employment Tribunal.

What Is Classed As Working Time?

Finally, a key issue for the Sports Direct case is what is actually classed as working time?

Working time is defined as any time during which a worker is working, at their employer’s disposal and carrying out their duties. There has also been recent case law demonstrating that, for those workers without a fixed placed of work, travelling time to their first assignment of the day and travelling time from the last assignment of the day may count as working time.

Against this legal backdrop, should the time spent by Sports Direct workers undergoing compulsory security checks be considered working time that is counted for NMW purposes? It is highly likely that the answer to this question is “yes”.  This is because workers are not free to leave the company’s premises until the compulsory security checks are completed.

How Can Your Company Avoid A Similar Fate?

Those companies operating in sectors where payment of the minimum wage is prevalent often adopt a proactive stance and schedule annual reviews to ensure legal compliance in this respect. These reviews can be linked to annual pay reviews or can form part of wider audits which align HR strategies to deliver the businesses’ objectives.

In any event, and at the very least, all companies need to:

  • have an awareness of the current NMW rates which are updated twice a year;
  • understand what payments can be included for NMW purposes; and
  • understand what counts as working time for NMW purposes.

This then enables a company to identify any risks which may arise on the back of the publicity surrounding high profile NMW cases such as Sports Direct; at the very least this will enable that company to tackle those risks head on.

CONTACT DETAILS:

If you would like more information on this topic, audits or would like to discuss a specific concern in relation to your business, please contact us:

Call: +44 (0) 808 172 93 22     Email: fgmedia@fgsolicitors.co.uk

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

Absenteeism – What’s the impact on your business?

Contact Details

For more information 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.

Football Hooliganism – Can You Dismiss?

FG_Soccer-01

Media continue to focus on football hooliganism at Euro 2016 – what’s that got to do with your staff?

Most individuals will support their chosen nation from the comfort of their armchair over the coming weeks, but some will be lucky enough to have time off work to travel to France to indulge their passion for live football.  Whilst in the minority, there will be others whose only goal will be to indulge their passion for football hooliganism.

The French authorities have shown zero tolerance towards to any bad behaviour; the response has been and continues to be swift. Depending on the severity of the offence, guilty fans have been fined or given custodial sentences irrespective of nationality.

What is your response if one of your employees is one of these guilty fans who is incarcerated in France?  

Your immediate reaction may be to dismiss the employee, but is this fair if their imprisonment arose from actions that were completely separate to their employment?

The answer is that where there is misconduct outside of the workplace, it might be fair to dismiss where the misconduct affects (or could affect) the employee when they are doing their work.

Be aware there is no automatic right to dismiss

An employer cannot automatically assume that an employee can be dismissed because they have been convicted of a criminal offence, even where they are given a custodial sentence – see below.  An employer would need to consider:

  • what effect the conviction has on the employee’s suitability to do their job; and
  • their relationship with their employer, work colleagues and customers.

Cases involving violence, such as hooliganism, are more likely to affect the employment relationship either because of:

  • the nature of the work (if an employee’s job is working with children or vulnerable people any form of violence is unlikely to be tolerated); or
  • damage to the employer’s reputation (no employer is likely to want to be associated with football hooliganism and this could cause more damage to some organisations than others.  If there is significant negative publicity in the media, this is more likely to damage an organisation’s reputation).

An employer who dismisses in response to an employee’s criminal conviction without having considered the elements above, should expect swift receipt of an unfair dismissal claim (unless the employee has less than 2 years’ service, and so will not usually be able to bring such a claim).

What if the employee is in prison?

If an employee is in custody, the employer must also consider whether, in light of the needs of the organisation, the employee’s job can be held open.  The longer the period of imprisonment, the more likely it is to be a fair decision that the employee’s job cannot be held open.

In some cases where there is a particularly long duration of imprisonment, employment may end by reason of “frustration”, which mean the contract can no longer be performed.  In theory, no process needs to be followed if frustration applies.  Employers should always seek legal advice on whether this could apply rather than assuming that it will; frustration is a concept employment tribunals often struggle with as a reason for concluding the employment has ended.

Follow a reasonable process

When there is a criminal charge or conviction, a reasonable and fair process should be followed, as with any misconduct dismissal, which should consist of a reasonable investigation followed by a disciplinary hearing where the employee has a reasonable opportunity to respond to the allegations against them.  If, however, the employer cannot contact the employee or the employee will not co-operate, this does not mean the employer cannot continue with the process; an employer could offer to conduct the process in writing or based on the information they have.

Contact Details

For further advice on dismissing employees who have been charged or convicted with a criminal offence – 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.

Settlement Agreements – A Perfect Ending!

160519 Settlement AgreementSUMMARY: Learn more about settlement agreements with the answers to some of the most frequently asked questions.  

Q: When can we use a settlement agreement?

A:   Settlement agreements are often used to resolve workplace disputes, and to give the employer the certainty that once the agreement is signed there will be no subsequent employment tribunal claim from a disgruntled employee.  More often than not, the employment relationship will have broken down. The focus then is usually on avoiding unfair dismissal and discrimination claims. A whole raft of statutory employment rights and breach of contract claims can also be compromised.

There does not necessarily need to be a dispute as settlement agreements can be used in a variety of other circumstances where the employment will end.  For example, where there are performance or ill health issues, a voluntary exit or a restructure.

Settlement agreements are not however always about the employment relationship ending, as they can be used at any time during the employment relationship to resolve workplace disputes. For example, if there has been a complaint about how holiday pay has been calculated.

We would recommend that where a settlement agreement is being contemplated, legal advice is taken before any discussions take place with the employee so that any legal risks are identified and then can be properly managed.

Q: What are the benefits of using a settlement agreement?

A:  A settlement agreement allows an employer to manage legal, commercial and reputational risks all in one go in the knowledge that there will be no tribunal claim.  Significant management time, stress and expense can be saved.

Terms can also be agreed on issues that a tribunal would be unable to address. For example, the offer of a positive reference; or the introduction of post termination restrictions, where the existing contract is silent on the employee’s activities once they have left.

Settlement can also keep a dispute out of the public eye and be subject to strict confidentiality provisions.

These benefits need to be balanced with the fact the employee will want something in return, no matter how at fault they may be. Money is usually the main consideration but the circumstances may dictate an entirely different exit package.  There are also restrictions on an employer’s ability to compromise personal injury and accrued pension rights claims.

Q: Are there any essential requirements which need to be complied with to make the deal binding?

A: The following are essential to ensure that the employee is not able to bring an employment tribunal claim:

  • The settlement agreement must:
    - be in writing;
    - identify the complaints to be compromised; and
    - state that it satisfies certain legal requirements.
  • The employee must also have received independent legal advice.

A poorly drafted agreement or one which has been incorrectly signed may leave the door open for an employee to bring a tribunal claim, even if they have already been paid a sum of money.

Q: How long should we give an employee to consider a settlement agreement?

A: An employee should generally have at least 10 days to consider the settlement agreement and obtain legal advice. A shorter period could lead to allegations of undue pressure, permitting reference to the settlement offer in a subsequent tribunal claim, if settlement is not reached.

If there is a commercial imperative requiring a shorter period, legal advice should be taken.

Q: Do we have to pay for the employee’s legal advice?

A: An employer is not obliged to pay the employee’s legal costs.  To get the job done, an employer will often choose to make a contribution.  A good starting point is £250 plus VAT. The following factors may demand a higher contribution: locality, seniority of the employee and the complexity of the case.

Q: Can we recycle a settlement agreement used in the past for a different employee?

A: We would caution against recycling for two reasons:

  • Each employee’s circumstances are different; and these circumstances need to be taken into account in the agreement. A one size fits all approach will not provide the employer with the best possible protection; and may give no protection at all.
  • Any changes to the law may require amendments being made to the agreement.

Contact Details

If you would like to explore whether a settlement agreement may be the best option for your business where you have a workplace problem – 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.

Are Legal Highs a Workplace Issue?

DrugsSUMMARY: Use of legal highs has increased recently – how can employers manage this in the workplace?

The increase in the use of legal highs is now widely publicised.  Given this increase, the reality is that some employees may be at work under the influence.  This could present employers with two main problems: impaired employee performance; and serious health and safety implications for both the employer and the employee.

Whilst some employers may dismiss this issue on the basis it is unlikely to be a significant concern for them, the following points are worth noting when deciding whether to be proactive:

  1. Many so called “legal highs” are actually illegal.
  2. The drugs can have the same effects on users as some more traditional illegal substances.
  3. During 2014 in England, such drugs were implicated in 129 deaths.
  4. Legislation is currently going through Parliament to ban the supply of these drugs.

We would therefore recommend the following action points for employers:

  1. Update policies – consider how this issue can be covered in alcohol and drugs policies.  Employers should have clear rules about coming to work under the influence of drugs and alcohol and about taking drugs or drinking at work.  Legal highs can be treated in the same way as other drugs would be.  If policies are unclear, this is the time to update them.
  2. Remind – remind employees attending work under the influence of drugs that the use of legal highs at work is banned and ensure that they are aware of relevant policies and the potential sanctions for breaching these policies.
  3. Educate – educate staff and line managers on the signs of drug use, what to be aware of and the action they should take.

Contact Details

For more details about the issues in this employment law article or if you would like an alcohol and drugs policy 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.

On the 8th Day of Christmas…

8th Day of ChristmasOn the 8th day of Christmas my employee said to me…. “I didn’t enjoy the Christmas party as one of my colleagues kept harassing me.”

With the ever increasing demands of work the Christmas party is a great way to say thank you to staff. Most employees, when entering into the party spirit, will remember that there is a need to convey some semblance of good behaviour; sometimes, however a small number of staff are forgetful of this and lose all sense of propriety. In most instances their behaviour will be mildly amusing or annoying but in some cases it can become offensive and distressing.

Regardless of whether the party is away from the workplace and/or not in work time, employment law will still apply. This means employees who behave inappropriately towards their colleagues can be held accountable for their behaviour. Additionally, employers can be held responsible for the conduct of an employee towards a colleague where bullying, harassment and discrimination is involved.

It is therefore important to take seriously complaints of this type and not treat them any differently because the behaviour complained of occurred at a social event. Ignoring such a complaint could lead to a costly employment tribunal claim and reputational damage. Key considerations for an employer wishing to minimise these risks include:

  • Ensuring the complaint is dealt with quickly and impartially under the grievance procedure – the procedure should include the usual stages such as an investigation, meetings and an appeal.
  • Taking disciplinary action if the complaint is upheld.

However, proactive employers can also take preventative steps to minimise the risk of complaints in the first place, such steps can include:

  • Implementing and communicating an equality and harassment policy.
  • Providing equal opportunities training.
  • Dealing with complaints fairly and effectively.

Implementation of these simple steps should enable everyone to focus on the true purpose of the event and have fun at this time of year.

Contact Details

For more details about the issues in this article 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.

On the 7th Day of Christmas…

7th Day of ChristmasOn the 7th day of Christmas my employee said to me… “I’ve had too much to drink at the Christmas party.”

Many employers celebrate the festive season by providing alcohol for employees at the Christmas party. It is easy to forget that in this season of good cheer employment law still applies and if alcohol is to be served at a work event, employers should consider the following to manage any potential legal risks:

  • Having a policy in place setting out the standards of conduct expected at work social events and the consequences of breaching the policy. The policy should be brought to the attention of all employees prior to any Christmas party.
  • Ensuring that the event is as inclusive as possible to avoid complaints of discrimination. Non-alcoholic drinks should be available for employees who do not drink alcohol for religious or other reasons.
  • Keeping an eye out for younger members of staff as employers cannot serve alcohol to under 18s. This is becoming a more relevant consideration as the number of apprentices increase in the workplace.
  • Having the party at a licensed venue. Whilst this will not entirely absolve the employer from its duty of care to its staff, the venue owner will be responsible for serving the alcohol.
  • Ensuring that the health and safety obligations towards staff are satisfied. Employers need to consider how those who are worse for wear from excessive drinking will be managed and who will deal with this, particularly if there is a free bar. It may be preferable to limit the amount of alcohol that can be consumed and make non-alcoholic refreshments readily available.
  • Making clear what the arrangements are in relation to lunchtime events if alcohol is to be served where employees may be returning to work in the afternoon. Does this provide a health and safety risk for example in a factory setting, or a reputational risk in a customer facing environment?
  • Providing food and entertainment, which can be a distraction to those who may otherwise spend the evening propping up the bar.
  • Reviewing the arrangements for staff to get home safely. There should importantly be a zero tolerance message about drink driving.
  • Taking prompt action if there are conduct issues to be dealt with after the event. This applies equally if complaints are made by employees about harassment… more about this on the 8th Day of Christmas.

This guidance equally applies to other corporate social events at other times of the year.

Contact Details

For more details about the issues in this article 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.

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.