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Government responds to pregnancy and maternity discrimination report

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The Government has responded to the Women and Equalities Committee’s report on pregnancy and maternity discrimination in the workplace.

The House of Commons Women and Equalities Committee released a report last year expressing concerns about the treatment of pregnant women and new mothers at work. The report stated that the number of new and expectant mothers who had been forced to leave their jobs had almost doubled since 2005. It stated that “the situation is likely to decline further unless it is tackled effectively now”, and called upon the Government to take urgent action.

The report set out a total of 21 recommendations for the Government to take forward. Among them were the following:

• extending the typical 3-month limitation date for bringing a Tribunal claim to 6 months for pregnancy-related discrimination cases;
• substantially reducing the Tribunal fees for pregnancy-related discrimination cases from the current total of £1,200 (which is the issue and hearing fees combined);
• giving women protection from redundancy for 6 months after returning from maternity leave; and
• assuring that protections for women would not be diminished due to the UK’s vote to leave the EU.

The Government has since released its response to the report. At the outset it states that the Government takes the issue of pregnancy and maternity discrimination very seriously and that it is committed to tackling the problem. It also provided responses to the WEC’s specific recommendations as follows:

• in relation to the limitation date, the Government did not see sufficient evidence to show that the 3-month time frame was acting as a barrier to women looking to bring tribunal claims. It noted that the Tribunal has the discretion to accept discrimination claims submitted after the limitation date where it is just and equitable to do so. However, it agreed to keep the matter under review.
• in the Government’s separate review of the fee regime, it stated that the evidence suggests that the drop in pregnancy and maternity discrimination claims is lower than for other forms of discrimination. It therefore could not see the case for singling out this kind of claim for special fees treatment.
• the Government agreed that the proportion of mothers being made redundant (which research suggests is 6%) is unacceptable. It therefore committed to consider means for ensuring that sufficient protection is afforded to pregnant women and new mothers.
• the Government assured that leaving the EU will not lead to a reduction in employment rights, and pointed to the fact that UK maternity rights already go further than the minimum prescribed by EU law.

Although the Government in its response has rejected a number of the WEC’s recommendations, it did agree to look further into mothers’ protections against redundancy, so further updates are expected in future.

Government response to the House of Commons Women and Equalities Committee report on pregnancy and maternity discrimination

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Refusal to permit a 5-week holiday was not religious discrimination

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The refusal of a Catholic employee’s 5-week holiday to attend religious festivals was not indirect religious discrimination.

Mr Gareddu was a practicing Roman Catholic originating from Sardinia. He worked as an engineer for the London Underground. Mr Gareddu was contractually entitled to 38 days’ holiday per year inclusive of bank holidays, and in the past he had been permitted to take 5-week long holidays in summer to return to Sardinia.

A new manager was allocated to Mr Gareddu from March 2013. The new manager told Mr Gareddu that he would not be permitted to take 5 consecutive weeks’ annual leave again in the following year, and that a limit of 15 consecutive days would apply in future. Though Mr Gareddu’s 2014 break was permitted to go ahead because it was pre-booked, his request for 5 weeks’ leave in 2015 was rejected.

Mr Gareddu challenged that refusal on the basis that it was indirectly discriminatory on the basis of his religion. He argued that he utilised the 5-week holiday to attend 17 or 18 ancient Roman Catholic festivals in Sardinia held in and around August each year, and that London Underground’s 3-week limit therefore put him at a particular disadvantage compared to those without the same religious beliefs.

The Employment Appeal Tribunal rejected Mr Gareddu’s argument and agreed with the Employment Tribunal’s decision that he had not been discriminated against. Evidence elicited at trial showed that Mr Gareddu had not attended any festivals whilst in Sardinia in 2014 due to injury, and in 2013 had only attended 9 of the 17 or 18 festivals he stated were important to his beliefs. The EAT accepted that it was not a problem for Mr Gareddu to have mixed motivations for taking the 5-week holiday, so the benefit of seeing his family did not defeat his claim; however, the notion that he was required to attend the full regimen of festivals each year did not appear to be a genuine reason for his holidays.

In this case, had the need to attend the festivals been found to be a genuine reason for the need to take an extended holiday, the disadvantage to Mr Gareddu may have been made out. However, it may then have been possible for London Underground to assert that their decision was justified as a proportionate means of achieving a legitimate aim.

Gareddu v London Underground Ltd UKEAT/0086/16

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Whistleblowers must identify the legal obligation alleged to be breached

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A whistleblower making disclosures about potential wrongdoing must express a reasonable belief that an identifiable legal obligation has been breached or will be breached. It is not enough just to say something is wrong.

Ms Korshunova was a sales executive for Eiger, a broking business. Eiger would use Bloomberg Chat to liaise with traders, and Ms Korshunova found that Mr Ashton (the managing director) had been using her profile to speak to clients without identifying himself. Ms Korshunova said that it was wrong for Mr Ashton to impersonate her and asked IT to change her password (which Mr Ashton had said would be gross misconduct).

Some weeks later, three of Ms Korshunova’s accounts were transferred to junior brokers. After two trading errors and an argument with Mr Ashton, Ms Korshunova was invited to a disciplinary hearing for ‘failure to follow instructions and poor performance’. Ms Korshunova was dismissed following a disciplinary hearing which she declined to attend. The reason given for dismissal was that she had failed to carry out the reasonable instructions of a superior (in the form of misusing Eiger’s equipment by changing her password and turning off her computer) and had quoted the incorrect prices to customers.

Following an unsuccessful internal appeal, Ms Korshunova brought Employment Tribunal claims alleging whistleblowing detriment in the removal of her accounts and automatically unfair dismissal on the grounds of making protected disclosures.

The Employment Appeal Tribunal found that the detrimental treatment actually came as a result of Ms Korshunova’s insubordination. Whilst it was accepted that Ms Korshunova genuinely believed that Mr Ashton must have breached some legal obligation in impersonating her on Bloomberg Chat, she could not say what the obligation was. There needed to be some form of identifiable legal obligation in order to establish whether the belief was a reasonable one.

This case shows that a whistleblower must do more than express a belief that the employer’s actions are wrong. A protected disclosure needs to actually set out something identifiable, whether legislation, regulatory rules or industry guidance, that the employer is in breach of.

Eiger Securities LLP v Korshunova UKEAT/0149/16

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Gig economy: Pimlico Plumber found to be a worker

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A Pimlico Plumber was held to be a worker despite his contract labelling him as an independent contractor. This gives him a right to be paid holiday and the national minimum wage, amongst other things.

Mr Smith was a plumber with Pimlico Plumbers for over 5 years. Around 4 months after Mr Smith suffered a heart attack, Pimlico terminated his contract. Mr Smith brought claims in the Employment Tribunal claiming unfair dismissal, wrongful dismissal, sick pay, holiday pay, unlawful deductions from wages and disability discrimination.

Before the Employment Tribunal could hear those claims, it had to determine whether Mr Smith was in fact an employee or a worker rather than a self-employed person in business on his own account. In order to do so, it had to look at the contractual and factual relationship between him and the company. Among the factors taken into consideration were the following:

• Mr Smith’s contract said that he was under no obligation to accept work, and that Pimlico was not obliged to give him work, but that Mr Smith should complete a minimum of 40 hours’ work per week.
• Whilst Mr Smith would drive a Pimlico Plumbers branded van and wear a uniform, he was obliged to provide his own tools and materials.
• Mr Smith was VAT registered, completed tax returns on the basis that he was self-employed and would submit invoices to Pimlico in order to receive payment. He would lose out on pay if a customer failed to settle a bill and he had to provide his own liability insurance.
• The contract did not expressly allow Mr Smith to send in a substitute to perform work on his behalf. However, it was found on the evidence that the plumbers would swap assignments between themselves.

Mr Smith’s contract also contained restrictive covenants, including one which prevented him from rendering plumbing services in the Greater London area for 3 months after the termination of his employment.

The Court of Appeal held that Mr Smith was a worker rather than a self-employed contractor (however, he was not an employee so not entitled to unfair dismissal protection). His contract, and the reality of the working relationship, required him to provide personal service. In addition, the degree of control Pimlico had over Mr Smith’s work was inconsistent with a client-contractor relationship.

It has been reported that Pimlico Plumbers is considering appealing this judgment, though it follows several high-profile cases in recent months challenging the mis-labelling of workers within the ‘gig economy’ as self-employed persons.

Pimlico Plumbers Ltd and Mullins v Smith [2017] EWCA Civ 51

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Government publishes review into Employment Tribunal fees

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The Government’s long-awaited review into the Employment Tribunal fees regime has been published, and fees will remain.

Employment Tribunal fees have been in place since 2013. At present, Claimants in cases involving unfair dismissal, whistleblowing and discrimination (among others) must pay £250 to issue a claim and a further £950 once the final hearing approaches. The Ministry of Justice has reported that the intake of these fees has met approximately 20% of the running costs of the Employment Tribunal system.

Despite criticism of the fee regime from a number of sources, the review states that the fee regime is working well and largely meeting its objectives (which are the generation of fee income, greater use of Acas early conciliation, and protection of access to justice).

That said, the review acknowledged that the fall in the number of Employment Tribunal claims has been greater than expected. As a result, a few tweaks to the system have been announced. For example:

• the process of obtaining fee remission has been simplified and rebranded as ‘Help with Fees’. The Ministry of Justice has reported a “marked increase” in the number of fee remissions granted since the changes were implemented – from 15% in the quarter July to September 2013 to 29% in the quarter January to March 2016; and
• the Government will consult on proposals to expand ‘Help with Fees’ by increasing the gross monthly income threshold necessary to qualify from £1,085 to £1,250.

On the other hand, the review rejected suggestions that the fee regime is either indirectly or directly discriminatory.

Review of the introduction of fees in the Employment Tribunals: Consultation on proposals for reform

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Tribunal compensation limits to increase

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As of 6 April 2017, higher limits will apply to various compensation awards payable under employment legislation.

At the start of each new financial year, the limits applicable to various Employment Tribunal awards are increased. The two most important changes this year are as follows:

• the limit on the compensatory award for unfair dismissal claims will rise from £78,962 to £80,541; and
• the limit on a week’s pay (which features in the calculations of redundancy payments and basic awards for unfair dismissal claims, among other things) will increase from £479 to £489.

It is important to note that the new rates will apply to cases where the liability arises after 6 April 2017. This means that people who are unfairly dismissed or made redundant after that date can enjoy the higher limits, but those dismissed before then will have the lower 2016/2017 rate applied to them regardless of when their award of compensation is made.

The Employment Rights (Increase of Limits) Order 2017 SI 2017/175

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Online database of Employment Tribunal judgments goes live

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The much-anticipated online database of Employment Tribunal judgments is now live, meaning that employees suing their former employer and employers being sued can now be identified by journalists and prospective new employers much more easily. This will make some claimants think twice before taking a case to trial and some employers will also feel more hesitant about going the full distance.

The database remains a work-in-progress, but at the time of writing there are already 7 pages of judgments publicly available in full.

The judgments available so far seem to be final judgments as opposed to judgments on preliminary hearings, and it is not clear whether that will change as more are added.

An interesting feature of the database is that the search function not only searches against the title of the case, i.e. the names of the Claimant and Respondent, but also text within the judgment itself. This means that any names mentioned within a judgment may also be picked up.

This new feature has a variety of potential implications for both individuals and employers.

From an individual’s perspective, the prospect of having a judgment on the internet which can be readily searched for by potential new employers may pressurise them to settle, or to avoid litigating in the first place. Even if an individual’s claim is upheld, it is possible for certain unflattering details about their behaviour to remain in the judgment and the very fact that they have brought proceedings at all will put many employers off paying them. It is conceivable that this could have a chilling effect on the number of claims.

As a company, this is an obvious source of bad press. Any bad behaviour will be available for all to see, and potential new employees may even search for their prospective employer before applying for a job in the first place. In discrimination or whistleblowing detriment cases, it is not unusual for staff of the employer to be named as individual Respondents. This adds an additional layer of pressure, as senior mangers’ professional reputations could also be at stake.

Another important factor for companies is the use of confidential information. Whilst tribunal judgments have always been theoretically public (in the sense that Employment Tribunal hearings are held in public and there was a database of judgments available for inspection in Bury St Edmunds), the full text of a judgment has never been so readily accessible by so many people. Any confidential evidence which makes it into the judgment will now be out in the world at large, and this is an additional risk to consider. To circumvent this issue, it may be that employers begin applying to tribunals to ask that such details are kept in a confidential schedule to the judgment, or something similar.

That said, it is still early days for the database and its practical impact remains to be seen.

See the database here.

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