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According to research, the majority of London law firms still have an overwhelmingly male-dominated partnership. Women have represented more than 60% of entrants into the solicitor profession since 1990. There has been a huge push in diversity and inclusion initiatives within law firms in recent years. So why is female partnership diversity still failing?

The Lawyer cited research which revealed that out of the 50 top law firms in London, 45 still have lower female representation at partnership level than the industry benchmark of 30 per cent. Of the five firms who had reached the industry benchmark, three had female partnership representation of 30 per cent, one of 31 per cent and one of 44 per cent. The overall average of female partnership amongst the top 50 city firms was 23 per cent.

One explanation may be that the solutions currently being pursued under diversity and inclusion initiatives will take time to have a meaningful impact, in contrast to more interventionist solutions.

Diversity and inclusion initiatives are the “soft arm” of lawful positive action. These initiatives (which are lawful under section 158 of the Equality Act 2010) include women only networks, women only training programs, outreach programs and mentoring schemes.

By their very nature, such initiatives can only achieve so much success in a short period of time. They rely on the winning of hearts and minds, the shifting of entrenched attitudes and the slow redress of wider social injustices that reach far beyond the confines of the employment market.

Faster and more direct action is permitted under the positive action provision set out at section 159 of the Equality Act 2010.

This provision can be used in relatively limited circumstances, but it allows employers during recruitment and promotion processes to take positive action towards women who are disproportionality underrepresented.  It can be used in recruitment and promotion in relation to a “tie-breaker”. Where two or more candidates are of “equal merit” an employer may take into consideration whether one is from a group that is disproportionately under-represented or disadvantaged within the workforce.

Allowing positive action in circumstances where candidates are “of equal merit” raises a whole host of additional questions and concerns for employers. How can employers make this assessment safely?  How can they avoid making subjective assessments of candidates? How often are candidates truly of equal merit?

Getting the assessment wrong could leave employers open to reverse discrimination claims. Law firms are likely to be more acutely aware of this pitfall than employers in many other industries.

The use of positive action also opens up wider social and political questions, such as whether it is really an employer’s duty, as opposed to the government’s duty, to tackle such pervasive and longstanding social injustices so directly. Even for those who agree that employers shoulder some responsibility in helping to redress social diversity issues, measures of the sort permitted under section 159 are still viewed by many as radical and inequitable.

Taking all these issues together, whether for good or ill, many employers are still reluctant or unwilling to implement positive action into their recruitment or promotion processes. Law firms in the City do not seem to be in any rush to buck this trend.

This seems to leave only two main ways to tackle gender diversity issues at partnership level in law firms. Law firms can wait for societal developments to trickle down into the employment market and legal sector, which is wholly unsatisfactory. Alternatively, law firms can turbo charge their efforts to push diversity and inclusion initiatives, as well as implementing and promoting policies and practices that aim to support women (such as during periods of pregnancy, demanding childcare and menopause), with the aim of accelerating meaningful cultural change and diversity improvements within the workplace. Both are bound to take time.

Whilst it may be unsurprising that female partnership diversity in law firms is still, at present, failing, it is not an option to do nothing in the hope the problem fixes itself.

If you would like to discuss positive action, diversity and inclusion or sex discrimination in the workplace, please contact Rebecca Rubin (rebeccarubin@bdbf.co.uk) or your usual BDBF contact.

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In only the second appellate decision on menopause in the workplace, the EAT held that an Employment Tribunal had erred in deciding that a woman suffering from a wide range of menopausal symptoms which affected her day to day life was not disabled for employment law purposes.

What happened in this case?

Ms Rooney worked as a social worker for Leicester City Council.  In August 2017 she began to suffer from a wide range of menopausal symptoms including hot flushes, palpitations, night sweats, insomnia, fatigue, light-headedness, confusion, difficulty concentrating, memory loss, depression, anxiety, loss of confidence, urinary problems and headaches.  Ms Rooney felt unsupported and resigned on 29 October 2018.  A few months later her solicitors lodged an Employment Tribunal claim alleging constructive dismissal.  On the claim form her solicitors conceded that she was not disabled by virtue of her menopausal symptoms.

However, Ms Rooney said that her solicitors had made this concession without her permission.  She fired them and the next day lodged a second Employment Tribunal claim, alleging discrimination, harassment and victimisation on the grounds of disability and/or sex.  These claims centred around alleged mistreatment of her by the Council in connection with her menopausal symptoms including that:

• the Council had failed to meet her request to be seen by a female occupational health specialist, which caused her embarrassment;
• the Council failed to take her condition into account when deciding to issue a written warning in respect of her sickness absence;
• she was forced to discuss her situation in front of four male colleagues at an internal appeal hearing, again, causing her embarrassment;
• a male manager minimised the fact that she suffered from hot flushes by comparing it to the fact that he also got hot in the office; and
• the Council failed to make reasonable adjustments for her.

Ms Rooney applied to amend the first claim to remove the statement that she was not disabled.  However, at a Preliminary Hearing, an Employment Judge decided that Ms Rooney was not disabled by virtue of her menopausal symptoms.  As a result, her claims of disability discrimination, harassment and victimisation were all dismissed.  The Judge also struck out the sex discrimination, harassment and victimisation claims for having no reasonable prospect of success.  Ms Rooney appealed to the Employment Appeal Tribunal.

What was decided?

The EAT decided that the Tribunal had been wrong to say that Ms Rooney was not disabled.  The Judge had erred in considering what Ms Rooney could do, instead of focusing, as it should have done, on what she could not do.  It was also wrong to have concluded that her menopausal symptoms only had a minor or trivial effect on her day-to-day activities.  The Tribunal had accepted evidence that she suffered from a wide range of symptoms which had led her to:

• forget to attend appointments and events;
• lose personal possessions;
• forget to take safety measures when driving (such as putting the handbrake on);
• forget to turn off appliances such as the oven and the iron;
• forget to lock the door when leaving the house; and
• spend long periods of time in bed due to fatigue.

She also experienced dizziness, incontinence and joint pain.  The Tribunal had accepted this evidence but gave no explanation for why it had considered that these effects were merely minor and trivial.  The Tribunal’s decision appeared to be based, in part, on the fact that in her first claim it had been stated that she was not disabled yet this neglected the fact that she had applied to amend the first claim to remove that statement.

The EAT said the Tribunal had also been wrong to strike out the sex discrimination, harassment and victimisation claims.  The Judge had failed to consider the extent of Ms Rooney’s complaints in this respect and wrongly stated that her complaint was confined to feelings of embarrassment at having to discuss her symptoms with men.  There was also a failure to explain why the claims had been struck out.

The EAT allowed Ms Rooney’s appeal and ordered that a new Employment Tribunal should consider the claims.

What does this mean for employers?

There is growing momentum around the impact of the menopause in the workplace.  In the last few months alone, two Parliamentary inquiries have been launched and the Wellbeing of Women charity has urged employers to take the menopause pledge to increase understanding, support and training around the issue.  Could greater awareness lead to a surge in related Employment Tribunal claims, including discrimination claims?  Media reports suggest this is already happening.  However, further scrutiny reveals that since Employment Tribunal decisions were first published online in February 2017, only 44 out of 79,000 decisions have included the word “menopause”.  And, in fact, menopause was a material issue in only 27 of those 44 decisions.

More interestingly, ten of those 27 decisions concerned the preliminary issue of whether menopausal claimants, like Ms Rooney, qualified as disabled under the Equality Act 2010.  In Donnachie v Telent Technology Services Ltd it was decided that there is no reason in principle that typical menopausal symptoms cannot have a relevant disabling effect on an individual (discounting the remedial effect of hormone replacement therapy where used).  Despite this statement, closer analysis reveals that only three claimants were found to be disabled by reason of their menopausal symptoms (Ms Rooney may turn out to the be the fourth).

To date, therefore, menopausal women have faced an uphill struggle in showing that they are entitled to bring disability discrimination claims.  However, growing awareness around the impact of menopausal symptoms may lead to a turning of the tide.  Where possible, employers should ensure they seek occupational health advice on whether an affected employee is disabled, asking questions which probe the various elements of the disability test.

The other important take away for employers is that insensitive behaviour from managers can cause problems. This includes things like minimising or belittling symptoms, refusing to speak to staff about menopause issues or, conversely, forcing such conversations to take place.  Analysis of the 27 Employment Tribunal decisions suggests that this type of behaviour is not uncommon.  Employers can avoid liability for such mistakes by training managers on how to manage menopausal employees.  Information to support such training is now freely available.  For example, in May 2021, the Chartered Institute for Personnel Development published A Guide to Managing Menopause at Work: Guidance for Line Managers, which includes guidance on how to conduct sensitive discussions.

Rooney v Leicester City Council

If you would like to discuss how your organisation can support staff though the menopause, please contact Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

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The Government has announced that a new right for employees to take up to one week of unpaid carer’s leave per year will be introduced when Parliamentary time allows.  In this briefing we explain how the new right will work and what steps employers should take to prepare.

Background

Plans to introduce a new right to carer’s leave were first raised almost two years ago.  The Queen’s Speech in December 2019 outlined the Government’s intention to bring forward an Employment Bill  which would introduce a new right to unpaid carer’s leave.  Unsurprisingly, given the onset of the pandemic, the Employment Bill did not materialise.  However, the Government did open a public consultation on the proposal – that consultation closed on 3 August 2020.  Just over a year later, on 23 September 2021, the Government published its response to the consultation and has confirmed that the right will be introduced as soon as Parliamentary time allows.  It is estimated that this right will benefit almost 2.5 million employees who have caring responsibilities.

Who will be able to take carer’s leave?

All employees in England, Wales and Scotland will be entitled to take carer’s leave from Day 1 of their employment. They will be entitled to take the leave to care for and/or make arrangements to provide care for a “dependant” who has a “long-term care need”. 

It is anticipated that the meaning of “dependant” here will align with its meaning in the context of other employment rights and will cover the following people:

• spouse / partner / civil partner (including same sex partners);
• child;
• parent;
• a person living with the employee as part of their household; and
• a person who relies on the employee for care.

In this context, a “long-term care need” will mean:

• a long-term physical or mental illness or injury;
• a disability under the Equality Act 2010; and/or
• care needs relating old age.

How may carer’s leave be taken?

The entitlement is to one week’s unpaid leave per year. 

The one week’s leave may be taken flexibly, for example as half days, full days or in a single block of one week.  It is hoped that such flexibility will better meet the needs of those with caring responsibilities.  In theory, this means that employers could have to deal with a higher number of leave requests than would be the case if the leave had to be taken in a single block.  However, we suspect that, in practice, many carers wishing to take shorter blocks of leave (such as half days) will be in a position to plan in advance when they will need to take the leave and be able to make a block booking.

The right is to unpaid leave only.  Although some respondents to the consultation were in favour of prescribing paid leave, the Government rejected this option on the basis that it wanted to ensure a “proportionate impact” on employers.   However, employers may choose to offer paid leave if they wish.

What are the requirements for booking carer’s leave?

An employee wishing to take carer’s leave must give notice to their employer at least twice the length of the leave requested, plus one day.  For example, if an employee wished to take Friday afternoon off as carer’s leave, they would need to give notice by no later than the preceding Wednesday.   An employer may refuse a particular request to take carer’s leave where they consider this would unduly disrupt their business.  However, the employee must be allowed to take the leave at another time.

There will be no requirement for employees to provide their employer with evidence of the need to take carer’s leave – they will be able to self-certify.  Should an employee falsely claim the leave then this would be a disciplinary matter (and, as a dishonesty offence, would probably justify immediate dismissal).  Employers could introduce their own requirement for evidence to be provided, but consideration would have to be given to compliance with data protection laws (since the evidence may involve the disclosure of medical information relating to a third party).

Do eligible employees have any other rights?

Employees will be protected from detriment and/or dismissal for taking, or seeking to take, carer’s leave.  A dismissal for a reason connected to exercising the right to carer’s leave will be automatically unfair.

Where eligible, employees taking carer’s leave will remain entitled to take other relevant forms of leave such as unpaid time off for dependant emergencies or unpaid parental leave.  Eligible employees may also be able to request flexible working arrangements (and proposals to make this a Day 1 employment right are currently under consultation). 

What are the next steps?

The new right to carer’s leave will be introduced when Parliamentary time allows.  It is not yet clear when that will be, but we anticipate that it will be in 2022. 

In due course, employers should consider putting in place a written policy explaining what the right is and how employees may request leave.  Consideration should be given to whether evidence of eligibility will be required and whether the right will be enhanced, for example, by offering additional and/or paid leave.  Where a decision is made to offer paid leave, then this is information which must form part of the particulars of employment to be given to an employee on Day 1 of their employment (either in the employment contract or another document such as a Staff Handbook).  Consideration should also be given to providing training to line managers, so that they understand how to respond to requests and how to avoid responding in a way which may be viewed as detrimental.

Carer’s leave consultation: Government response

If you would like to discuss how to implement carer’s leave within your organisation please contact Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

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In Daley v Vodafone Automotive Ltd the EAT held that an Employment Tribunal should have considered whether an employer’s failure to probe the impact of an employee’s depression and medication rendered the dismissal process unfair.

What happened in this case?

Mr Daley worked as a warehouse supervisor for Vodafone Automotive Ltd.  In October 2018, he had an argument with a colleague at work.  The colleague complained that Mr Daley had been offensive, threatening, intimidating and had sworn at him during the argument.  Vodafone commenced an investigation and the result was that Mr Daley was dismissed for gross misconduct.

Mr Daley lodged an appeal.  He did not accept that he had behaved inappropriately.  However, he also disclosed (for the first time) that he had been suffering from severe depression since April 2017.  He explained that he took strong medication to help manage his condition, and that both the depression and the medication caused side effects including anger, frustration, irritability and anxiety.

However, Vodafone rejected the appeal.  As far as his depression was concerned, Vodafone noted that Mr Daley had not raised this during either the investigation or disciplinary hearing.  Nor was Vodafone on notice of his condition (and they said there was nothing which should have alerted them to it) at the time the decision to dismiss was taken.  Vodafone also referred to an “off the record” discussion that Mr Daley had had with a member of HR in which he was alleged to have said: “if I had known it would have come to this, I would have hit him”.  However, Mr Daley was not given an opportunity to make representations about this matter during the appeal process.

Mr Daley brought a claim for unfair dismissal.  The Employment Tribunal found that the decision to dismiss was fair, but the failure to allow Mr Daley to respond to the “off the record” comment rendered the appeal process unfair.  However, it went on to find that this would have made no difference to the overall outcome and so no compensation award was made.

Mr Daley appealed to the Employment Appeal Tribunal.

What was decided?

Mr Daley argued that the appeal process was flawed because Vodafone should have investigated his mental health and medication, and the possible impact on his behaviour.   Medical advice should have been sought and consideration should have been given to whether it amounted to a mitigating factor.  Mr Daley argued that the Employment Tribunal failed to deal with this point when considering the quality of Vodafone’s investigation.

The EAT agreed with Mr Daley.  A new Tribunal will now have to consider whether Vodafone ought to have conducted these further investigations before rejecting Mr Daley’s appeal against his dismissal.  If a Tribunal decides that they should have done so, and this would have made a difference to the overall outcome, then the issue of compensation will have to be revisited.

What does this mean for employers?

Whilst a show of aggression towards a colleague will almost always amount to misconduct sufficient to justify dismissal, this case reminds us that employers still need to take the utmost care with the process.  Here, potentially mitigating information was brushed aside on the basis that the employer didn’t know about it at the time.  Although other factors may have meant the dismissal should have been upheld (such as the lack of contrition and the alleged comment about physical violence), a fair process may still require further steps to be taken.  Had the employer carried out such further investigations (e.g. obtaining occupational health advice), it is possible that the misconduct may have been viewed in a different light and a lesser sanction imposed.

Further, an employee in Mr Daley’s position could also seek to bring a discrimination arising from disability claim, arguing that the dismissal was discriminatory because it was in response to misconduct connected to a disability.  Provided that the employer knows – or should have known – about the disability, it is irrelevant whether they also know that the misconduct in question arose out of the disability.  A good example of this was seen in the case of City of York Council v Grosset. The employee was a teacher who suffered from cystic fibrosis (and the employer was aware of his condition and that it was a disability).  He showed an 18-rated film to a class of 15-year-olds. The employer dismissed him for gross misconduct.  He maintained that his error in judgement was due to stress connected to his disability.  He succeeded in a claim for discrimination arising from disability.  Although the school was unaware at the time it decided to dismiss that the misconduct was linked to his disability, there was, in fact, such a link.

In practice, this means that it would be sensible for employers to pause to consider whether proposed negative treatment of an employee (e.g. disciplinary action or a performance improvement process) which is based on “something” (e.g. misconduct, poor performance or sickness absence) could potentially have arisen out of a disability.  Where there is a possible link, it would be wise to obtain medical evidence on the point and whether any relevant reasonable adjustments should be made before taking action.

Daley v Vodafone Automotive Ltd

If you would like to discuss any issues arising out of this decision please contact Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

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A new report on sexual harassment in the workplace has shown the continued prevalence of such behaviour, even when employees work from home.  In this briefing we highlight the key findings of the report and outline the recommended steps for employers.

Since Alyssa Milano’s tweet back in 2017, the #MeToo movement has propelled the global campaign to tackle systemic issues of sexual harassment, especially within the workplace.

Off the back of the #MeToo movement, the Fawcett Society (together with other organisations) has continued the campaign. Indeed, it has succeeded in achieving a commitment from the Government to introduce legislation which places a duty on employers to prevent sexual harassment in the workplace. Whilst legislation can protect victims and penalise perpetrators, the Fawcett Society believes that more needs to be done to change the root causes of sexual harassment – a cultural change needs to happen. The “banter” needs to be called out.

In response, the Fawcett Society has published a report, Tackling Sexual Harassment in the Workplace, which is based on evidence from women who have experienced sexual harassment in the workplace and a survey of managers who have dealt with reports of sexual harassment.

What does the report show?

The key findings of the report show that:

• At least 40% of women had experienced harassment in the workplace. This increased for women who are marginalised for other reasons (e.g. race, class, disability).
• 45% of women surveyed reported having experienced harassment online through sexual messages, cyber harassment and sexual calls – these experiences escalated whilst working from home in the pandemic (which is consistent with the increase in reports of domestic violence during the lockdown).
• 68% of disabled women reported being sexually harassed at work, compared to 52% of women in general.
• Workers from ethnic minority backgrounds (women and men) reported higher rates of sexual harassment than white workers (38% compared with 28%).
• 68% of LGBT workers had experienced some form of harassment in the workplace.

Given that hybrid working continues to be the norm for many, the finding that harassment increased when working from home will be of concern to employers.

Broadly, the report found that women often felt that they could not report harassment in the workplace, due to fears that complaints would not be treated seriously and that investigations would not be conducted confidentially.

Interestingly, the report also focused on managers, who are often caught in the middle of delicate and difficult complaints with little training, support or assistance to guide them through the process.

These factors have resulted in a deep-rooted culture whereby some employers seek to resolve incidents of sexual harassment quietly in order to minimise liability, and where workers fear victimisation for speaking out.

It is for this reason that the Fawcett Society is calling for a cultural shift from “an individualised approach of an institutional problem” and has identified five key elements to eliminating sexual harassment in the work place, namely: culture, policy, training, reporting mechanisms and the way an employer responds to reports.

What can employers do to eradicate organisational cultures and norms which result in harassment?

The report recommends that employers:

• Take all forms of sexual harassment seriously – this includes seemingly innocent “banter”.
• Ensure that all employees who report sexual harassment are treated with respect and empathy and that victims feel comfortable reporting harassment (for example through anonymous reporting).
• Increase gender equality within the organisation, particularly at senior levels.
• Demonstrate a commitment to tackling harassment through strong leadership.
• Conduct employee surveys to measure organisational attitudes towards sexual harassment.
• Provide training to managers so that they feel equipped to deal with harassment complaints.
• Produce a detailed sexual harassment policy, separate to a general harassment and bullying policy.

This report, and the Government’s commitment to legislate, could be viewed as yet another burden laid at the door of employers. However, it is important to recognise that if employers want to create diverse and productive environments for their employees, which will improve employee retention and engagement, then there is certainly an excellent business case for tackling this problem.

Tackling Sexual Harassment in the Workplace

If you would like to discuss how your organisation can tackle the issue of harassment in the workplace, please contact Emily Plosker (emilyplosker@bdbf.co.uk), Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

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We are pleased to announce that BDBF has once again been top ranked by Chambers UK in their 2022 Guide with all BDBF’s partners named as leading individuals.

Here is the outstanding feedback on our team.

Employment: Senior Executives – Band 1

The team:

“They are incredibly committed to their clients and they give them robust and clear advice that is focused on getting the best result.”

“They are client-centric and they were flexible in the face of constraints imposed by the pandemic.”

“fantastic service that is very attentive and client-focused.”

All of our partners have been ranked as leading individuals and senior associates, Clare Brereton and Emily Plosker, are named as associates to watch.

Gareth Brahams (Band 1) – “He is very strategic and he understands the human dynamic behind cases.” “He does not give up and he will strive to get the result for his client.” “He is a terrific litigator, he’s seen it all and done it all, and he’s tactically very sound.”

Claire Dawson (Band 2) – “I find her to be outstanding – she gives trusted counsel and has a solutions-driven approach.” “She is a very reassuring person to have on your case.”

Paula Chan (Band 2) – “I find her advice to be sound, pragmatic and thorough.” “I am extremely impressed by her knowledge and her analysis, as well as her ability to talk to clients in language that they understand.”

Polly Rodway (Band 3) – “Polly is accessible, she is responsive, she can quickly digest documents and information, and she is clear in her responses.” “She is thorough and she is willing to engage with difficult points.”

Nick Wilcox (Band 4) – “He is technically astute, conscientious and pragmatic.” “He is very well prepared, he is not intimidated by facing up to large corporates, he is a tough litigator and he looks to take on interesting points of law.”

Clare Brereton (Associate to Watch) – “She has an outstanding work ethic, she is responsive, she has seemingly limitless reserves of patience and she exhibits sensitivity to the impact of challenging litigation on her clients.” “She has years of experience under her belt, she is very impressive in cases with a mental health element and she is very good with clients.”

Emily Plosker (Associate to Watch) – “Emily Plosker is extremely conscientious, she is organised and she really cares about her clients.” “She is outstanding – she has first-rate knowledge of the law and she has very good client care skills.”

Thank you to our clients, counsel and peers for the incredible feedback.

If you would like to discuss your employment law needs please contact your usual BDBF contact, email us at info@bdbf.co.uk or call us on 0203 828 0350.

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BDBF will be in the Court of Appeal on Tuesday this week, acting for the Claimant in a disability discrimination case.  Chris Milsom of Cloisters Chambers will appear as counsel.

The appeal concerns the definition of “disability” in the Equality Act 2010 and, in particular, the circumstances in which a mental health condition recurring over a number of years meets that definition.  The outcome of the case will potentially be significant for employees whose mental health conditions fluctuate over time. 

The Equality and Human Rights Commission has provided legal assistance for this case to be heard in the Court of Appeal.

The hearing comes shortly after World Mental Health Day and at a time of increased public discourse about the importance of mental health, particularly in the workplace.

Our client is appealing the decision of Mr Justice Choudhury in the Employment Appeal Tribunal (EAT) which held that the Employment Tribunal (ET) had not erred in concluding that the long-term requirement in the definition of disability was not met on the facts of our client’s case. According to the EAT, the ET was entitled to conclude on the evidence that, although there was a substantial adverse effect in one year which was then repeated four years later, in neither case was it likely that the adverse effect would last for 12 months or that it would recur again. According to the EAT, the ET had been correct to interpret “likely” as if it meant “could well happen”, and that it had approached the question of the likelihood of recurrence correctly. The EAT also held that the ET had not erred in deciding that the employer did not know and could not reasonably be expected to know of our client’s disability.

The arguments in our client’s appeal include that the ET set the bar too high when assessing the effect of the Claimant’s condition, and that it failed to consider the impact the mental health impairment had on our client’s professional activities which ultimately led to his dismissal

Our hope is that the Court of Appeal will provide further clarity on the extent to which historic episodes of mental health issues that take place over a period of years can be taken together to demonstrate a recurring mental health issue which is sufficient to satisfy the definition of disability for the purposes of gaining protection under the Equality Act 2010.

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Today – 10 October 2021 – is World Mental Health Day. The aim of the day is to raise mental health awareness. The day was launched in 2012 at the initiative of the World Health Organisation. The theme of the day this year is “mental health in an unequal world”.

Mental ill health can affect anyone at any time. There has been increased focus on mental health over the past 18 months due to the Covid-19 pandemic. Sadly, the mental health of many in the country has been affected by lockdowns, fear of ill-health, being forced apart from family, home schooling, anxiety about job security, and the blurring of the lines between home and work.   

At BDBF we have seen a rise in the number of senior individuals contacting us seeking advice in relation to workplace mental health issues, in particular in relation to burn out.  Often the first thing those employees need (after seeking medical support and guidance) is support from their employer, such as through counselling services or modified working arrangements

What can you do if you believe your mental health is suffering?

Employers have a duty to provide employees with a safe system and place of work. They should exercise reasonable care for their safety and health and take steps to protect employees from risks that are reasonably foreseeable, including risks of psychiatric injury or damage.

If you believe your working conditions are damaging your health, start a conversation with your employer. Consider initiating a discussion about your health with your line manager, Human Resources (‘HR’), or someone else in the management chain that you feel comfortable approaching.

Let them know how you are feeling and the cause of your stress, anxiety or ill-health. Open up a dialogue about the support you need to get better and do your job successfully. In some cases, it may be a good idea to attend an appointment with an occupational health specialist, so that a more informed support program can be put in place. This is something your employer will normally arrange for you.

What can your employer do to help?

Depending on the nature and extent of your condition, you may qualify for protection under the Equality Act 2010 (‘the Act’). To qualify for protection, you need to have a “disability” as defined in the Act. You may satisfy the legal test for disability even if you don’t consider yourself disabled or you are not disabled for other purposes (e.g. social security benefits).  A condition will amount to a disability if it is a physical or mental impairment which has a substantial and long-term adverse effect on your ability to carry out normal day-to-day activities. For a condition to be long term, it needs to have lasted, or be expected to last, for at least 12 months. It may also be recurring (meaning it comes and goes). Normal day-to-day activities could include concentration, ability to sleep and socialising. 

Importantly, employers are under a proactive duty to make reasonable adjustments for disabled employees in the workplace. This means this duty arises even if you don’t ask, though often it helps to ask. This duty arises irrespective of whether your ill-health was caused by work or by something outside of work.

The duty to make adjustments only once the employer knows, or could reasonably be expected to know, about an employee’s disability. It is therefore a good idea to disclose your condition to your employer at an early stage so that you can avail yourself of certain rights and protections under the Act, including the right to adjustments. Adjustments might include time off for treatment (such as CBT), altered working hours or a reduced or altered workload. Your employer may also have other forms of support in place to help you get better or manage your condition, such as employee assistance programmes. Disclosing your condition not only helps you access immediate support, it will assist you in any subsequent legal proceedings should the support you need be unavailable or if you are subject to detrimental treatment.

Protection against discrimination

It is unlawful for your employer to treat you less favourably because of your disability. It is also unlawful for you to be treated unfavourably because of something arising in consequence of your disability, unless such treatment can be objectively justified. For example, those with depression may find it difficult to get up in the mornings, meaning they may be late for work frequently. If you are disciplined for poor timekeeping, without account being taken of your depression, this could constitute discrimination arising from your disability. If you find yourself in this situation, it is important to be open with your employer about why your timekeeping suffers in the mornings and discuss whether changes can be made to your working pattern to assist you. There are various other forms of disability discrimination, which we do not cover in this article.

If you believe you are being discriminated against you should considering trying to resolve matters informally with your employer, failing which raise a formal grievance. Check your employer’s grievance policy for the steps you need to take to bring a grievance.

Although bringing an employment tribunal claim for disability discrimination is in most cases a last resort, it is important to be aware that there are short time limits for bringing proceedings.

Conclusion

Whilst the pandemic has shone a spotlight on mental health issues, the stigma around it remains. The more people feel able to talk about mental health, the less stigmatised it will become. Although we encourage individuals to be proactive about talking about their health, the onus should not be on the employee to shift the dial. On World Mental Health Day, we urge employers to do more to support mental health at work. Ensure those in management positions are trained on how to support mental health at work, implement policies on mental health and start a dialogue with employees about mental health. It’s good to talk.

If you would like to know more, or you need advice about mental health or disability discrimination please contact Hannah Lynn (hannahlynn@bdbf.co.uk) or your usual BDBF contact.

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We are pleased to announce that we have again been ranked as a top tier firm by Legal 500 for 2022.

Please see below the comments made about our team.

Employment: Senior Executives – Tier 1

The team:

“Clients cannot speak highly enough of the team at Brahams Dutt Badrick French LLP; ‘top flight’ and  ‘an absolute powerhouse’ are some of the comments on its services for senior employees. For the whole range of discrimination issues, high-profile sensitive exits, and whistleblowing claims, ‘formidable litigator and negotiator’ Gareth Brahams and the team steer clients through the tactics and strategies that will produce the best outcome, including taking account of reputational issues. It has deep experience of the financial services sector and other highly regulated industries. The strong team has been further boosted with the arrival of the ‘go-to’ Claire Dawson, who joined in April 2021 and Paula Chan, who joined in late 2020 from Slater and Gordon, and who is noted for her expertise in dealing with partnerships. The ‘outstanding’ Polly Rodway has a noted focus on sex/maternity discrimination and equal pay disputes and Nick Wilcox, who frequently acts with Dutt, is noted for always providing ‘cogent and wise advice’. The senior associates also attract praise; Samantha Prosser is reported to be ‘exceptional’ in her handling of Employment Tribunal claims for unfair dismissal, disability discrimination, worker status and whistleblowing detriment.”

Individual rankings:

• Gareth Brahams – Leading Individual
• Claire Dawson – Next Generation Partner
• Polly Rodway – Next Generation Partner
• Nick Wilcox – Next Generation Partner
• Samantha Prosser – Rising Star
• Paula Chan – Key lawyer
• Clare Brereton – Key lawyer

Testimonials:

‘BDBF offers a full and inventive range of services to senior individuals. They have extensive knowledge of employment law and the skill and ability to identify and pursue powerful claims. Sometimes this means coming up with new and different ways of formulating a claim. Anyone who goes there can feel confident of receiving first class advice.’

‘Nick Wilcox is a very safe pair of hands: the sort of lawyer you go to for sound, sensible and calm advice. He is unflappable and always provides cogent and wise advice to his clients.’

‘This is the specialist employment litigation firm you want to have on your side if you find yourself in need of litigation services. The associates looking after my case were all outstanding and were proactive in going the extra mile. The service was empathetically provided with a strong focus on getting the right outcome and taking into account costs. This firm should be more widely known.’

‘Samantha Prosser is an exceptional associate. She grasped the nuances of my case very quickly and applied an incisive strategy to progressing it, with extremely satisfactory results. She came across as personally invested in my case. Her assimilation of facts and dispute resolution strategy made her incredibly effective.’

‘Paula Chan. Simply the best employment solicitor I have ever worked with. She has everything, calm and poised, a brilliant legal brain, a ferocious hard worker but also very people orientated.’

‘An absolute powerhouse in the employment law field, particularly their representation of Senior Executives in the banking and finance sphere. Real strength in depth and an absolute pleasure to deal with. I would thoroughly recommend BDBF to any Senior Executive wishing to pursue a claim, whether in the Employment Tribunal or the High Court.’

‘Gareth Brahams is a true superstar of the employment law world. A formidable litigator and negotiator with a vast knowledge of the legal principles combined with formidable tactical nous. Gareth should be the first port of call for Senior Executives with an employment issue. Gareth is also one of the few senior employment law solicitors with the knowledge and understanding of personal injury law to enable him to litigate bullying and stress at work cases in the High Court.’

‘Polly Rodway is an outstanding lawyer. Determined, thoughtful, excellent advice.’

Employers – Tier 6

The team:

“Maintaining a strong emphasis on regulated professions, Brahams Dutt Badrick French LLP’s employment practice, fronted by Gareth Brahams, specialises in High Court proceedings, Tribunal litigation and contentious exits. A popular referral choice, the group also undertakes internal investigations and disciplinary issues. It welcomed Paula Chan in September 2020 from Slater and Gordon, as well as Claire Dawson from CC Solicitors in March 2021.”

Individual rankings:

• Nick Wilcox – Key lawyer
• Polly Rodway – Key lawyer
• Claire Dawson – Key lawyer
• Tom McLaughlin – Key lawyer

Testimonials:

‘The team is approachable, calm, responsive and understanding.’

‘BDBF continues to be completely customer-centric and deliver exceptional service. They are responsive, always available when needed and they provide sound pragmatic advice which means we reach sensible solutions to a range of complex employment issues.’

‘Nick Wilcox has exceptional technical knowledge both in terms of the market and employment trends/issues but also knowledge of our business as it has evolved. I have complete faith and trust in his advice and guidance at all times. Tom McLaughlin provides great support for Nick and we work well with him on a range of issues.’

Thank you to our clients, referrers and employment law colleagues for the incredible feedback.

If you would like to discuss your employment law needs please contact your usual BDBF contact, email us at info@bdbf.co.uk or call us on 0203 828 0350.

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The Government has published a consultation seeking views on proposals to expand and improve the flexible working framework.  In this briefing, we look at the proposals for reform, as well as the changes that the Government has declined to take forward.  The consultation closes on 1 December 2021.

What is the consultation about?

The Government’s 2019 manifesto committed to consult on making flexible working arrangements the default save where employers had good reasons not to permit them.  On 23 September 2021, the Government published a consultation entitled “Making Flexible Working the Default”, setting out its proposals for change. 

The consultation opens with the statement that “A world class approach to flexible working is a key part of the Government’s ambition to build back better”.  It highlights how the COVID-19 pandemic has shown us that things can be done differently in the workplace when we have to.  The Consultation says we have had our eyes opened to what is possible, and we must seize the moment to make flexible working in all its forms part of “business DNA”.

These grand statements suggest that radical and substantial proposals for legislative reform will follow.  However, the reality is somewhat more modest, with the emphasis placed on cultural rather than legislative change.  Because the proposed changes are so modest, below, we first outline what is not changing and then what the proposals for reform actually entail. 

What will not be changing?

Employees will not have the right to be granted a flexible working arrangement

Despite the 2019 manifesto commitment – and the name of the Consultation – the proposals do not propose to give employees a right to have a flexible working arrangement.  The Government considered whether this would be the right way to make flexible working the default but concluded that there were too many moving parts for this to be achievable in a practical or sensible way.   The Consultation points to the wide range of different roles and ways of working within them, the multiple forms of flexible working, the broad range of individual needs and the wide range of business models as barriers to a “one size fits all” right to flexible working.

Instead, the Government wants to encourage better discussions about flexible working between employees and employers.  The Consultation proposals are aimed at “rebalancing” the current flexible working framework to support discussions about what may be possible.

Employers will not be required to publish their flexible working policies 

The Government’s July 2019 consultation, Good Work Plan – Proposals to Support Families, contained proposals for large employers (i.e. those with 250+ employees) to publish their flexible working policies.  The Consultation explains that the responses received to the earlier consultation demonstrate that it is important for employers to be able to adapt their flexible working policies to specific workplace scenarios at different times.  Furthermore, there were concerns about what information should be published, meaning that “policy” would have had to be defined in legislation.  It is said that this would create a rigid approach, contrary to the wider policy aim of wishing to encourage conversations between employees and employers.

With these points in mind, and the fact that businesses are still taking stock of which working practices will be effective after the pandemic, the Government has decided not to require employers to publish their flexible working policies.

Employers will not be required to state in job advertisements whether flexible working is available

In addition, employers will not be required to specify in job advertisements whether flexible working is available (and in what form) for a particular job role.  However, the Government believes that its proposal to make the right to request flexible working a “Day 1” employment right will help to deliver cultural change which, in turn, could lead to employers providing this information in job advertisements on a voluntary basis.  

What are the proposals for reform?

The Consultation seeks views on the following five proposals for reform:

Proposal 1 – Should the right to request flexible working become a “Day 1” employment right?

Currently, employees must have 26 weeks’ continuous service with their employer before they can make a flexible working request.  The 26-week threshold was introduced to reduce the burden on employers of administering such requests. However, a previous review of the flexible working legislation did not find evidence that dealing with requests placed an unreasonable costs burden on employers.

The Government believes that the qualification period works against the aim of making flexible working the default and reinforces the perception that it is something an employee must earn or receive as a “perk”.  The proposal is to remove the 26-week threshold and make the right a “Day 1” employment right.  This would expand flexible working rights to a further 2.2 million employees.  The Government also believes that this reform would help to nudge certain behaviours from employers, namely, considering flexible working early in the job design and recruitment processes.

Proposal 2 – Are all of the eight business reasons for refusing a flexible working request still valid?

Currently, an employer may refuse a flexible working request for one of eight business reasons set out in the flexible working legislation.  These are:

• Extra costs that will be a burden on the business.
• The work cannot be reorganised among other staff.
• People cannot be recruited to do the work.
• Flexible working will negatively affect quality.
• Flexible working will negatively affect performance.
• The ability to meet customer demand will be negatively affected.
• There is a lack of work to do during the proposed working times.
• The business is planning structural changes.

The Government is content that the current list does not present a disproportionate barrier to flexible working and it does not see a case for fundamentally changing them.  However, it is recognised that things have changed since flexible working was first introduced and so views are sought on whether these eight reasons remain reasonable.

Proposal 3 – Should employers have to show that they have considered alternatives when rejecting a flexible working request?

Currently, employers who wish to refuse a flexible working request must provide the reason or reasons for refusal (see above).  There is no obligation for them to consider alternative solutions.

The Government wishes to ensure that the law supports informed discussions between employees and employers, including whether, and how, different types of flexible working arrangements could be accommodated.  Therefore, the Consultation seeks views on how practical it is to ask employers to consider alternatives and explain this when rejecting a flexible working request.  It is hoped that building in such a requirement will influence organisational norms among businesses that have not fully considered the opportunities for flexible working.

Proposal 4 – Should employees be able to make more than one request per year and should the time period for employers to respond to requests be changed?

Currently, employees are able to make one flexible working request per year.  Once a request is made, an employer has three months to consider whether the request can be accommodated and provide a response.

The Consultation seeks views on allowing employees to make more than one request per year.  The Government’s view is that it would allow the framework to be more responsive to changes in an individual’s personal circumstances.  The Consultation asks whether there should be a cap on the number of requests that may be made per year – suggesting two, three, more than three or none.

In terms of the employer’s timeframe for response, the Government considers the current three month period to be the right one but seeks views on whether change is needed.  The Consultation suggests alternative periods – the lowest of which is under two weeks.

Proposal 5 – How can employees be encouraged to make requests for temporary changes where needed?

The current flexible working framework already provides for temporary arrangements to be agreed.  However, the Government believes this is underutilised and seeks views on what would encourage employees to make requests to support temporary life changes (e.g. settling a child into school or an elderly parent into a care home).

Is there anything else to know?

Aside from the proposals for legislative reform, the Consultation outlines further work to be undertaken to help make flexible working the default:

Inviting the Flexible Working Taskforce to consider how to move on from Covid 19 and make the most of the lessons learned

The “Flexible Working Taskforce” is a partnership across business groups, trade unions, charities and Government departments.  The Government has asked the Taskforce to take forward what has been learned about working practices throughout the pandemic and develop advice to support new ways of working.  Initially, the Taskforce will focus on the location aspect of flexible working, in particular hybrid working.  Thereafter, it will move on to provide wider advice on best practice around all aspects of flexible working.  The Consultation does not specify when the Taskforce’s advice will be published.

Call for Evidence to be launched on how to secure a flexible working friendly culture across and within organisations

The Government’s view is that flexible working extends beyond requesting contractual changes to terms and conditions: it is also about getting the organisational culture right.  With that in mind, the Government plans to launch a separate Call for Evidence looking at the sorts of extra flexibility people need and how “ad hoc flexibility” can be supported.  The Consultation does not specify when the Call for Evidence will be published.

What steps should employers take now?

Employers wishing to submit their views on the Consultation questions can do so online here.  The Consultation closes on 1 December 2021.

It is not yet clear when the Government will publish a response, but it is unlikely to be before Spring 2022, meaning that the timeframe for legislative change is likely to be the latter half of 2022 (at the earliest).  Accordingly, there are no immediate steps for employers to take.  However, given the shift towards hybrid working caused by the pandemic, now is a good time to take stock of the general approach to flexible working and how it might change in future as many employers will already be doing.

In particular, if the right to request is made a Day 1 right, then it would be sensible to assume that the question will be raised in job interviews.  Therefore, some preliminary thought should be given to whether flexible working arrangements are workable.  Thought should also be given to whether to ask the question of job candidates proactively (on the basis that it is better to understand whether a request is likely to be made in future than to be taken by surprise).  Of course, care must be taken to ask this question, and respond to the answer given, in a non-discriminatory way. 

Consideration should also be given to the management of internal flexible working processes.  If the right is expanded, and employees are also given the right to make multiple requests per year, then employers will have more requests to deal with (and potentially less time to respond to them).  Employers should ensure that processes are streamlined and that sufficient resources are allocated to dealing with incoming requests efficiently. 

Making Flexible Working the Default

If you would like to discuss the issues raised in this article please contact Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

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An employer’s refusal to allow an employee to make modest adjustments to her working hours following her return from maternity leave has been held to be indirect sex discrimination.  An Employment Tribunal awarded the employee £185,000.

What happened in this case?

Ms Thompson was employed as a Sales Manager by Manors, an estate agency.  Manors covered both sales and lettings, with many international clients.  Ms Thompson was recognised for her good client relationships and it was acknowledged by the company that “down to you, the business is doing well.”

Ms Thompson took a period of maternity leave between October 2018 and October 2019. On her return from maternity leave, she made a flexible working request asking to work four days per week from 9am to 5pm (rather than the standard 6pm).  She wanted to finish work at 5pm in order to pick up her daughter from nursery.  The flexible working request also set out a number of suggestions to make the proposal work including that her maternity leave cover (who was about to revert back to her original position) could fill in for her on her day off and that she would be available on her mobile telephone for any urgent queries between 5pm and 6pm.

Manors refused the request, citing the following business reasons:

• the burden of additional costs;
• the detrimental effect on the ability to meet customer demand;
• an inability to reorganise work among existing staff;
• an inability to recruit additional staff; and
• planned structural changes.

Ms Thompson appealed the decision on the basis that the grounds for refusal had not been explained. She referred to ACAS guidance on flexible working, highlighting that there had been no discussion of the request with her, rather it was a flat refusal.  Further, she argued that the request would not result in the burden of additional costs, cause any detriment to meet client demand or require additional staff.

Ms Thompson resigned before the appeal was finalised.  She went on to bring various claims, including a claim arguing that the working hours requirements was indirectly discriminatory on the grounds of sex.

What was decided?

The Employment Tribunal considered whether it was still the case that women are more likely to be the primary carers of children than men, noting that the situation is not as obvious now as it was a generation ago. Ms Thompson adduced evidence to confirm that this is still the case, which was accepted by the Employment Tribunal.  It is worth noting here that this decision was handed down before a recent Employment Appeal Tribunal decision, where it was accepted that the “childcare disparity” is a matter that Tribunals must take into account if relevant, without the need for further evidence.  In other words, although this employee was able to produce evidence to show that women were more likely to have primary child caring responsibilities, there was, in fact, no need for her to have gone to the trouble. The Employment Tribunal also agreed that the working hours requirement placed Ms Thompson at an individual disadvantage.

The Employment Tribunal then turned to consider whether the working hours requirement could be justified.  The Employment Tribunal understood the employer’s concerns about meeting customer demand, coupled with caution about changing the team’s roles during a time when Brexit had caused a period of uncertainty to the property market.  However, it did not follow that the employer was unable to have made the adjustments sought.  Although it would have caused them some difficulty, this did not outweigh the discriminatory impact that the working hours requirement had on Ms Thompson. As such, the requirement was not justified, and the indirect sex discrimination claim succeeded.  Ms Thompson was awarded compensation of £185,000.

What does this mean for employers?

It is critical for employers to consider the rationale and justification for refusing a flexible working request with care.  It is not enough to rely on the list of potential reasons for refusal set out in the law relating to requests for flexible working – a clear explanation is needed.  It is, therefore, important for employers not simply to rely on a template refusal letter; time needs to be taken to tailor the response to the issues that the business is concerned about and explain why the proposal is not viable in that particular individual case.

The Employment Tribunal also mentioned that no consideration was given to the use of a trial period to see whether the feared impacts would transpire. Trial periods are a useful tool which are often overlooked when considering how to respond to a flexible working request.  The pandemic has shown the viability of hybrid and/or flexible working for many roles and, as such, trial periods may be less relevant in some cases.  However, where the request concerns a novel working pattern, consideration should be given to the use of a trial period.

If you would like to discuss any issues arising out of this decision please contact, Emily Plosker (emilyplosker@bdbf.co.uk), Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

Thompson v Scancrown Ltd t/a Manors

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In the recent case of Shipp v City Sprint UK Limited an Employment Tribunal unanimously held that a senior employee was unfairly dismissed, harassed and discriminated against on the grounds of maternity/pregnancy and sex.  City Sprint’s argument that Mrs Shipp’s role was redundant following an internal business reorganisation was held to be nothing more than a sham.

What happened in this case?

Mrs Shipp had been employed by City Sprint Limited for 10 years at the date of her dismissal. She began a period of maternity leave on 10 June 2019 and was due to return to work in March 2020. At the time she went on maternity leave, she was City Sprint’s Group Marketing Director and sat on both the City Sprint Executive Board and the Group Executive Board.

She informed her colleagues about her pregnancy in February 2019 and was asked a number of highly inappropriate and intrusive questions from various senior executives.  Such questions concerned when she had stopped using contraception, if her pregnancy was planned, and if she had thought about how the pregnancy would affect her long-term career prospects.  In May 2019, shortly before she went on maternity leave, the Director of Operations said to her: “when you have to leave that little one in nursery, you won’t want to come back”. The CEO also purportedly remarked that they should put a wager on how much weight Mrs Shipp would put on during her pregnancy (however that comment was contested).

Mrs Shipp found these comments offensive and humiliating. She considered making a formal complaint but decided against it because she did not want her maternity leave to be marred by the issue. Furthermore, she was wary about making complaints against senior executives in circumstances where there had already been some allusion to the effects of her pregnancy on her career prospects. Instead, she raised her concerns informally with the Director of Customer Management and the Head of HR before going on maternity leave.

By the end of July 2019, all of the Group Executives (save for Mrs Shipp who was on maternity leave) had either been dismissed, resigned or made redundant. From 1 August 2019, City Sprint began to discuss reorganising the business. Even though Mrs Shipp was the sole remaining member of the Group Executive Board at that time, City Sprint failed to inform or consult with her about the proposed changes. Mrs Shipp first became aware of the proposed reorganisation on 6 September 2019 when she met with City Sprint’s former CEO.

On 20 September 2019, City Sprint sent Mrs Shipp a letter headed “Potential Redundancy – Consultation”. Later that same day, the proposed reorganisation was announced. When Mrs Shipp was shown the new structure charts, she recognised that her Group Marketing Director role had been replaced with a more junior Director of Marketing position, which it was proposed would neither report into the CEO nor have a seat on the reorganised Group Executive Board (now renamed the Operating Board).

This role was later offered to Mrs Shipp, however, it appeared that City Sprint had no genuine desire for her to return to work. Firstly, it was a demotion in seniority within the business structure; secondly, the salary was reduced by £20,000 without any apparent justification; thirdly, there was a new requirement that the role be performed from the London office four days per week, which was likely to be highly unattractive to Mrs Shipp as a new mother living in Wiltshire.

Other employees who had lost their Group Executive positions but had been retained in different roles, had not seen their salaries reduced and, in some cases, the individuals were given pay increases. Also, other senior executives whose teams were based in London were not required to work from the London office four days per week.

Consequently, on 3 December 2019 Mrs Shipp raised a grievance alleging that she had suffered discrimination relating to maternity/pregnancy and sex. On 16 December 2019, she contacted ACAS and commenced early conciliation. On 28 February 2020, she presented her first claim to the Employment Tribunal.  Finally, on 30 March 2020 City Sprint wrote to Mrs Shipp to inform her that her employment would be terminated as her role as Group Marketing Director was redundant and it gave her 6 months’ notice set to expire on 30 September 2020.

Mrs Shipp brought a s a variety of claims, however, in this article we look only at her claim of maternity/pregnancy discrimination.

What was decided?

First, The Employment Tribunal considered whether Mrs Shipp’s claims had been brought in time. It held that although the comments relating to Mrs Shipps’ pregnancy made between February and May 2019 were outside of the three-month time limit, it was just and equitable to extend time so that she could claim for those elements. In so doing, the Employment Tribunal provided useful support for pregnant women who are faced with potentially discriminatory treatment at the start of their maternity leave and who are concerned about the short timeframes within which to bring an Employment Tribunal claim. The Employment Tribunal also held that the discriminatory acts that related to the “sham” redundancy were part of a continued course of conduct and were, therefore, in time.

Having considered whether the claims were in time, the Employment Tribunal went on to find that the evidence demonstrated an intention to push Mrs Shipp out of the business and an awareness that her role was not truly redundant. In particular, an email from a director to the Head of HR stated that once Mrs Shipp had been removed from the company, her replacement could potentially be “promoted to the Board after say 6 months”.  The Tribunal held that the redundancy was a “sham” and the real reason for the unfavourable treatment of Mrs Shipp was because of pregnancy/maternity and/or sex.

What does this mean for employers?

Employers should be careful not to neglect employees on maternity leave during a business reorganisation where those employees would otherwise be entitled to be informed and consulted about any changes. However, the balance here is fine and an employer should be sensitive to each individual situation.  Whilst it is important to keep communication channels open and to provide information in a clear and timely fashion, an employer should also be mindful of the stresses that a new mother may be under and the fact that one of the purposes of maternity leave is to allow a woman to recover after childbirth.

Employers should be careful to avoid discriminating against female employees on the grounds of maternity/pregnancy whether or not a business reorganisation is in prospect. It should take steps to ensure that all staff members receive frequent training in relation to equal opportunities, discrimination and harassment at work.

If you would like to discuss any issues arising out of this decision please contact, James Hockley (jameshockley@bdbf.co.uk), Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

Shipp v City Sprint UK Limited

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