[et_pb_section admin_label=”Section” global_module=”136″ fullwidth=”on” specialty=”off” transparent_background=”off” background_color=”#ffffff” allow_player_pause=”off” inner_shadow=”off” parallax=”off” parallax_method=”off” padding_mobile=”off” make_fullwidth=”off” use_custom_width=”off” width_unit=”on” make_equal=”off” use_custom_gutter=”off”][et_pb_fullwidth_code global_parent=”136″ admin_label=”Post Header”][Page_Header_Start] Employment Law News [Page_Header_End][/et_pb_fullwidth_code][/et_pb_section][et_pb_section admin_label=”section”][et_pb_row admin_label=”row”][et_pb_column type=”3_4″][et_pb_text admin_label=”Text” background_layout=”light” text_orientation=”left” use_border_color=”off” border_color=”#ffffff” border_style=”solid”]

Caste discrimination claim succeeds

[post_details]

[Social-Share]

[post_tags]

A case brought by a former domestic servant against her employers has established for the first time that a person may be treated as discriminated against on grounds of race where the derogatory treatment is connected to their caste status.

Ms Tirkey was employed by Mr and Mrs Chandhok as a domestic worker, initially in India and then in the UK, between 2008 and 2012. Ms Tirkey is of the Adivasi caste, which is traditionally considered to be the ‘servant’ caste indicating low socio-economic status. Ms Tirkey brought a large number of claims against the Chandhoks which related to the derogatory and unfair treatment she received whilst employed by them. They included a claim for discrimination on grounds of race, which Ms Tirkey later sought to amend to add a complaint of caste discrimination.

At present, whilst ethnic origin is expressly mentioned by the legislation as an aspect of race; caste is not. On that basis, the Chandhoks sought to strike out the claim. The Employment Appeal Tribunal in December 2014 rejected the strike-out attempt, holding that caste can be considered an aspect of race for the purposes of racial discrimination. Previous cases had found that Jews and Sikhs were entitled to protection related to their ethnic origin; President Langstaff at the EAT concluded that “ethnic origin” therefore has a wide ambit which includes characteristics determined by descent. As caste is traditionally an inherited quality which does not change, it could fit that definition.

Ms Tirkey’s claims were therefore heard in the Employment Tribunal and were all successful. The Tribunal held that Ms Tirkey had been paid below the minimum wage for the duration of her employment and calculated that the shortfall was £183,773.53.

This case is the first to make clear that a person can be discriminated against on grounds of their caste. One can also conceive of other characteristics which may satisfy President Langstaff’s definition of “ethnic origin”; for example, class status in the UK is arguably determined by a person’s descent.

Tirkey v Chandhok and another ET/3400174/13

[/et_pb_text][/et_pb_column][et_pb_column type=”1_4″][et_pb_sidebar admin_label=”Sidebar” orientation=”right” area=”sidebar-1″ background_layout=”light” remove_border=”off”] [/et_pb_sidebar][/et_pb_column][/et_pb_row][/et_pb_section]

[et_pb_section admin_label=”Section” global_module=”136″ fullwidth=”on” specialty=”off” transparent_background=”off” background_color=”#ffffff” allow_player_pause=”off” inner_shadow=”off” parallax=”off” parallax_method=”off” padding_mobile=”off” make_fullwidth=”off” use_custom_width=”off” width_unit=”on” make_equal=”off” use_custom_gutter=”off”][et_pb_fullwidth_code global_parent=”136″ admin_label=”Post Header”][Page_Header_Start] Employment Law News [Page_Header_End][/et_pb_fullwidth_code][/et_pb_section][et_pb_section admin_label=”section”][et_pb_row admin_label=”row”][et_pb_column type=”3_4″][et_pb_text admin_label=”Text” background_layout=”light” text_orientation=”left” use_border_color=”off” border_color=”#ffffff” border_style=”solid”]

Corporate bodies can be victims of discrimination

[post_details]

[Social-Share]

[post_tags]

A recent decision has confirmed that it is possible for a corporate body to be the victim of discrimination within the meaning of the Equality Act 2010.

Mr Abrams was a member of EAD Solicitors LLP. He set up a limited company of which he was the sole director and principal shareholder. For tax reasons, Mr Abrams arranged for his company to take his place in EAD. When Mr Abrams reached the age of 62 (which was the age at which he would normally have retired if he were still a member of the LLP), the LLP objected to his company remaining a member of, and providing services to, it. Mr Abrams brought a claim alleging that his company had been discriminated against on grounds of age. The LLP objected, stating that a company was not entitled to make a claim given that it was not a natural person possessing the protected characteristic of age.

The Employment Appeal Tribunal disagreed on two bases. Firstly, it is a long-standing principle that a person may bring a claim of discrimination on the basis of treatment they received which is caused by a protected characteristic held by someone else. That nullifies the argument that a claimant may only bring claims which relate to characteristics they hold themselves. Secondly, the legal definition of a “person” includes corporate bodies and there is nothing in the Equality Act 2010 to suggest an alternative definition should be used.

EAD Solicitors LLP and others v Abrams UKEAT/0054/15

[/et_pb_text][/et_pb_column][et_pb_column type=”1_4″][et_pb_sidebar admin_label=”Sidebar” orientation=”right” area=”sidebar-1″ background_layout=”light” remove_border=”off”] [/et_pb_sidebar][/et_pb_column][/et_pb_row][/et_pb_section]

[et_pb_section admin_label=”Section” global_module=”136″ fullwidth=”on” specialty=”off” transparent_background=”off” background_color=”#ffffff” allow_player_pause=”off” inner_shadow=”off” parallax=”off” parallax_method=”off” padding_mobile=”off” make_fullwidth=”off” use_custom_width=”off” width_unit=”on” make_equal=”off” use_custom_gutter=”off”][et_pb_fullwidth_code global_parent=”136″ admin_label=”Post Header”][Page_Header_Start] Employment Law News [Page_Header_End][/et_pb_fullwidth_code][/et_pb_section][et_pb_section admin_label=”section”][et_pb_row admin_label=”row”][et_pb_column type=”3_4″][et_pb_text admin_label=”Text” background_layout=”light” text_orientation=”left” use_border_color=”off” border_color=”#ffffff” border_style=”solid”]

Victimising an employee for being associated with allegations of discrimination by others is unlawful

[post_details]

[Social-Share]

[post_tags]

[/et_pb_text][/et_pb_column][et_pb_column type=”1_4″][et_pb_sidebar admin_label=”Sidebar” orientation=”right” area=”sidebar-1″ background_layout=”light” remove_border=”off”] [/et_pb_sidebar][/et_pb_column][/et_pb_row][/et_pb_section]

[et_pb_section admin_label=”Section” global_module=”136″ fullwidth=”on” specialty=”off” transparent_background=”off” background_color=”#ffffff” allow_player_pause=”off” inner_shadow=”off” parallax=”off” parallax_method=”off” padding_mobile=”off” make_fullwidth=”off” use_custom_width=”off” width_unit=”on” make_equal=”off” use_custom_gutter=”off”][et_pb_fullwidth_code global_parent=”136″ admin_label=”Post Header”][Page_Header_Start] Employment Law News [Page_Header_End][/et_pb_fullwidth_code][/et_pb_section][et_pb_section admin_label=”section”][et_pb_row admin_label=”row”][et_pb_column type=”3_4″][et_pb_text admin_label=”Text” background_layout=”light” text_orientation=”left” use_border_color=”off” border_color=”#ffffff” border_style=”solid”]

Dismissal of outspoken Christian employee was discriminatory

[post_details]

[Social-Share]

[post_tags]

The dismissal of an employee who expressed negative views in respect of her colleague’s homosexual lifestyle was held to be discriminatory.

Ms Mbuyi, an evangelical Christian, was employed by Newpark Childcare Ltd. A colleague, LP, complained of several incidents where Ms Mbuyi had expressed her disapproval at LP’s homosexual lifestyle. As a result of this, she was invited to a disciplinary meeting during which it transpired that it was LP who had first started discussing her lifestyle and had asked Ms Mbuyi her thoughts on her living arrangements. Nevertheless, the nursery dismissed Ms Mbuyi for gross misconduct.

The Tribunal found that Ms Mbuyi had been directly and indirectly discriminated against, taking into account the fact that Ms Mbuyi had only been responding honestly to her colleague’s questions. Also relevant was the fact that the provision, criterion or practice of providing a non-discriminatory environment for children would disproportionately affect evangelical Christians, who felt compelled to share their religious views.

The Tribunal noted several procedural failings in the disciplinary process which led to Ms Mbuyi’s dismissal, and held that Newpark’s failure to provide her with prior warning of the allegations against her meant that the decision to dismiss was not proportionate.

Although this is an interesting decision, in which religious expression and sexual orientation meet, its impact will be limited; both because it is a first instance decision, but also because it was very fact-specific. In particular, the tribunal considered that, had the employer held both LP and Ms Mbuyi accountable for having conversations that were inappropriate in a work setting, it may have come to the conclusion that the dismissal was proportionate.

Mbuyi v Newpark Childcare (Shepherds Bush) Ltd ET/3300656/14, 4 June 2015

[/et_pb_text][/et_pb_column][et_pb_column type=”1_4″][et_pb_sidebar admin_label=”Sidebar” orientation=”right” area=”sidebar-1″ background_layout=”light” remove_border=”off”] [/et_pb_sidebar][/et_pb_column][/et_pb_row][/et_pb_section]

[et_pb_section admin_label=”Section” global_module=”136″ fullwidth=”on” specialty=”off” transparent_background=”off” background_color=”#ffffff” allow_player_pause=”off” inner_shadow=”off” parallax=”off” parallax_method=”off” padding_mobile=”off” make_fullwidth=”off” use_custom_width=”off” width_unit=”on” make_equal=”off” use_custom_gutter=”off”][et_pb_fullwidth_code global_parent=”136″ admin_label=”Post Header”][Page_Header_Start] Employment Law News [Page_Header_End][/et_pb_fullwidth_code][/et_pb_section][et_pb_section admin_label=”section”][et_pb_row admin_label=”row”][et_pb_column type=”3_4″][et_pb_text admin_label=”Text” background_layout=”light” text_orientation=”left” use_border_color=”off” border_color=”#ffffff” border_style=”solid”]

Request to wear shorter jilbab: discrimination or health and safety?

[post_details]

[Social-Share]

[post_tags]

An employer’s request that a Muslim employee wear a shorter jilbab for health and safety reasons was held not to be discriminatory.

Ms Begum applied for an apprenticeship as a trainee nursery nurse at the Barley Lane Montessori Day Nursery. Ms Begum was a practicing Muslim who wore a jilbab (a long, flowing garment covering most of the body, except the hands and face). Ms Begum was invited to interview for the role and work a trial period. Ms Begum did so whilst wearing her jilbab and reportedly performed well.

The nursery offered Ms Begum the apprenticeship and invited her to a meeting to discuss its policies and procedures, including uniform. The nursery noted that Ms Begum’s jilbab was long and, from the way she was sitting, it appeared to be floor-length. Ms Begum was asked whether she would be willing to wear a shorter jilbab so as to reduce the risk of tripping and injuring herself or the children. Ms Begum asked for time to consider and discuss the matter with her family.

Ms Begum did not report for work as expected. Instead, she brought a claim of indirect discrimination on grounds of religion; she alleged that the nursery had forbade her from wearing her jilbab.

The EAT found that the nursery had not discriminated against Ms Begum because it had not restricted her from wearing a jilbab, but rather suggested that she wear a somewhat shorter version so as to prevent tripping. It was material that 4 other staff at the nursery were Muslim women, one of whom wore an ankle-length jilbab to work. As Ms Begum was still permitted to wear a jilbab, she could not be said to be disadvantaged. It was found that even if Ms Begum were disadvantaged, it was legitimate to enforce the requirement in the interests of health and safety.

The nature of the job – caring for babies and small children – was, of course, a material factor in this decision. Before employers place restrictions on the wearing of religious attire, they should satisfy themselves that they have good reasons for doing so, and that any restrictions that they impose go no further than necessary.

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

[/et_pb_text][/et_pb_column][et_pb_column type=”1_4″][et_pb_sidebar admin_label=”Sidebar” orientation=”right” area=”sidebar-1″ background_layout=”light” remove_border=”off”] [/et_pb_sidebar][/et_pb_column][/et_pb_row][/et_pb_section]

[et_pb_section admin_label=”Section” global_module=”136″ fullwidth=”on” specialty=”off” transparent_background=”off” background_color=”#ffffff” allow_player_pause=”off” inner_shadow=”off” parallax=”off” parallax_method=”off” padding_mobile=”off” make_fullwidth=”off” use_custom_width=”off” width_unit=”on” make_equal=”off” use_custom_gutter=”off”][et_pb_fullwidth_code global_parent=”136″ admin_label=”Post Header”][Page_Header_Start] Employment Law News [Page_Header_End][/et_pb_fullwidth_code][/et_pb_section][et_pb_section admin_label=”section”][et_pb_row admin_label=”row”][et_pb_column type=”3_4″][et_pb_text admin_label=”Text” background_layout=”light” text_orientation=”left” use_border_color=”off” border_color=”#ffffff” border_style=”solid”]

Employer’s reasonable efforts found to be sufficient to avoid having constructive knowledge of a disability

[post_details]

[Social-Share]

[post_tags]

An employer’s reasonable, though not perfect, efforts to discern whether an employee’s numerous sickness absences were caused by disability have been found to be sufficient to prevent it having constructive knowledge of her disability.

Ms Donelien was employed as a court officer by Liberata UK Limited from 1998. Ms Donelien claimed to suffer from a number of health conditions, including hypertension and stress. In 2009, Ms Donelien was absent for a total of 128 days on various ill-health grounds, some of which related to hypertension and stress, whilst others were for colds or stomach upsets and some went unexplained. Liberata referred Ms Donelien to its occupational health service in May 2009, posing a number of questions in the referral. The report came back in July 2009 to state that Ms Donelien was not disabled, but as it failed to answer the questions posed, a more detailed version was produced at Liberata’s request. Despite the new version still failing to give insufficient answers to the questions, Liberata did not follow up a second time, but instead held ‘return to work’ meetings and attempted to discuss the situation with Ms Donelien. Ms Donelien was uncooperative and refused to give Liberata permission to speak to her GP.

Liberata took the view that Ms Donelien was not disabled and summarily dismissed her in October 2009 due to her repeated absences. Ms Donelien argued that she was disabled and that whilst Liberata did not actually know about her disability, her employer should have known had they taken sufficient trouble to find out and made reasonable adjustments.

Ms Donelien was found to have been disabled from August 2009. The EAT considered whether Liberata should have known and held that although Liberata did not revert to occupational health to press for answers to its questions on a second occasion, it did engage with Ms Donelien and considered two letters from Ms Donelien’s GP as requested. The EAT found that Liberata did all it could reasonably have done to make its own decision that Ms Donelien was not disabled rather than blindly relying on the report from occupational health.

This case reassures employers that whilst they must take reasonable steps to ascertain whether an employee is disabled to avoid a finding of constructive knowledge (even where the employee is being obstructive, as in the present case), the test is not a ‘counsel of perfection’. Nonetheless, employers should keep their minds open to the possibility that numerous sickness absences may be caused by an underlying disability.

Donelien v Liberata UK Ltd UKEAT/0297/14

[/et_pb_text][/et_pb_column][et_pb_column type=”1_4″][et_pb_sidebar admin_label=”Sidebar” orientation=”right” area=”sidebar-1″ background_layout=”light” remove_border=”off”] [/et_pb_sidebar][/et_pb_column][/et_pb_row][/et_pb_section]

[et_pb_section admin_label=”Section” global_module=”136″ fullwidth=”on” specialty=”off” transparent_background=”off” background_color=”#ffffff” allow_player_pause=”off” inner_shadow=”off” parallax=”off” parallax_method=”off” padding_mobile=”off” make_fullwidth=”off” use_custom_width=”off” width_unit=”on” make_equal=”off” use_custom_gutter=”off”][et_pb_fullwidth_code global_parent=”136″ admin_label=”Post Header”][Page_Header_Start] Employment Law News [Page_Header_End][/et_pb_fullwidth_code][/et_pb_section][et_pb_section admin_label=”section”][et_pb_row admin_label=”row”][et_pb_column type=”3_4″][et_pb_text admin_label=”Text” background_layout=”light” text_orientation=”left” use_border_color=”off” border_color=”#ffffff” border_style=”solid”]

Bonus scheme found to be discriminatory against disabled employees

[post_details]

[Social-Share]

[post_tags]

A bonus scheme which related to levels of sickness absence has been found to be discriminatory against disabled employees.

The Land Registry operated a discretionary bonus scheme under which employees lost their eligibility for bonuses if they had received a formal warning. Whilst managers had the discretion to ignore some warnings in determining bonus awards, warnings relating to sickness absence did not come within the scope of that discretion. The EAT found that the very fact of the absences led to non-payment, therefore making the measure discriminatory, with no justification.

Employers with bonus schemes should be wary of any potential discriminatory effects, particularly where eligibility is linked to levels of attendance. In order to avoid this, it is best to maintain an element of discretion, rather than applying automatic sanctions.

Land Registry v Houghton and others UKEAT/0149/14

[/et_pb_text][/et_pb_column][et_pb_column type=”1_4″][et_pb_sidebar admin_label=”Sidebar” orientation=”right” area=”sidebar-1″ background_layout=”light” remove_border=”off”] [/et_pb_sidebar][/et_pb_column][/et_pb_row][/et_pb_section]

[et_pb_section bb_built=”1″ fullwidth=”on” specialty=”off” transparent_background=”off” background_color=”#ffffff” allow_player_pause=”off” inner_shadow=”off” parallax=”off” parallax_method=”off” padding_mobile=”off” make_fullwidth=”off” use_custom_width=”off” width_unit=”on” make_equal=”off” use_custom_gutter=”off” global_module=”136″][et_pb_fullwidth_code global_parent=”136″][Page_Header_Start]Employment Law News[Page_Header_End][/et_pb_fullwidth_code][/et_pb_section][et_pb_section bb_built=”1″ admin_label=”section”][et_pb_row admin_label=”row”][et_pb_column type=”3_4″][et_pb_text background_layout=”light” text_orientation=”left” use_border_color=”off” border_color=”#ffffff” border_style=”solid”]

Introducing new terms of employment can be indirect age discrimination

[post_details]

[Social-Share]

[post_tags]

A worsening of benefits that were dependent upon length of service did have a worse impact on older workers, but in this case the changes were lawful because they were necessary.

Mrs Braithwaite and others became employees of HCL Insurance when the business (which was loss-making) they worked for was acquired. This resulted in a disparity between the terms of their employment contracts, and those of the company’s existing employees. The Company sought to harmonise the terms of employment for all employees and reduce staffing costs, which had reached 115% of the Company’s revenue. In doing so, it reduced the claimants’ benefits, including private health insurance, whilst increasing the claimants’ working hours.

The employees sought to negotiate alternative solutions with HCL to bring down staffing costs, such as obtaining funding from the parent company, or voluntary redundancies, but the Company did not adopt the recommendations. The employees alleged that the impact of the changes was age discriminatory because many of the benefits being cut were related to length of service, meaning older employees (who were likely to have worked with the Company for longest) suffered the most.

The Employment Appeal Tribunal found that the change of policy was potentially age discriminatory but could be justified (and so was lawful) as there was no less discriminatory way to achieve the necessary cost reductions to ensure survival of the business. The Tribunal also noted that the alternative suggestions put forward by the Claimants were not appropriate, as they would not serve to reduce the costs per employee.

Although the employer won on this occasion, this case reminds employers to give thought to any potential discriminatory impact of changing terms and conditions.

Braithwaite and others v HCL Insurance BPO Services Ltd UKEAT/0153/14

[/et_pb_text][/et_pb_column][et_pb_column type=”1_4″][et_pb_sidebar orientation=”right” area=”sidebar-1″ background_layout=”light” remove_border=”off” /][/et_pb_column][/et_pb_row][/et_pb_section]

[et_pb_section admin_label=”Section” global_module=”136″ fullwidth=”on” specialty=”off” transparent_background=”off” background_color=”#ffffff” allow_player_pause=”off” inner_shadow=”off” parallax=”off” parallax_method=”off” padding_mobile=”off” make_fullwidth=”off” use_custom_width=”off” width_unit=”on” make_equal=”off” use_custom_gutter=”off”][et_pb_fullwidth_code global_parent=”136″ admin_label=”Post Header”][Page_Header_Start] Employment Law News [Page_Header_End][/et_pb_fullwidth_code][/et_pb_section][et_pb_section admin_label=”section”][et_pb_row admin_label=”row”][et_pb_column type=”3_4″][et_pb_text admin_label=”Text” background_layout=”light” text_orientation=”left” use_border_color=”off” border_color=”#ffffff” border_style=”solid”]

ECJ rules that effects of obesity may amount to disability

[post_details]

[Social-Share]

[post_tags]

The European Court of Justice has ruled that, whilst obesity is not of itself a ‘disability’, the effects of obesity on a worker’s life could be deemed a ‘disability’.

Mr Kaltoft was employed by the Municipality of Billund in Denmark as a childminder until his dismissal in November 2010. Mr Kaltoft had a BMI of 54, putting him in the category of ‘morbidly obese’. He claimed that his dismissal was by reason of his obesity and, on that basis, brought discrimination proceedings in Denmark. The Danish Court asked the ECJ: (i) whether there is a general prohibition in EU law against all forms of discrimination including obesity; and alternatively (ii) whether obesity could be classified as a ‘disability’.

The ECJ confirmed that there is no specific prohibition in EU law against discrimination on the grounds of obesity. However, obesity could amount to a ‘disability’ in certain circumstances. A ‘disability’, must be a long-term physical, psychological or mental impairment which can hinder the full and effective participation of a person in professional life in comparison to other employees. An obese person may fit this definition if, as a result of their obesity, they suffer from mobility issues or other obesity-related medical conditions which prevent them from participating in professional life.

The ECJ held that the reason for the obesity cannot be a taken into account when determining whether it amounts to a disability, as to define a disability by reference to how it originated would undermine the principle of equal treatment altogether.

FOA, acting on behalf of Karsten Kaltoft v Kommunernes Landsforening, acting on behalf of the Municipality of Billund C-354/13, 18 December 2014

[/et_pb_text][/et_pb_column][et_pb_column type=”1_4″][et_pb_sidebar admin_label=”Sidebar” orientation=”right” area=”sidebar-1″ background_layout=”light” remove_border=”off”] [/et_pb_sidebar][/et_pb_column][/et_pb_row][/et_pb_section]

[et_pb_section admin_label=”Section” global_module=”136″ fullwidth=”on” specialty=”off” transparent_background=”off” background_color=”#ffffff” allow_player_pause=”off” inner_shadow=”off” parallax=”off” parallax_method=”off” padding_mobile=”off” make_fullwidth=”off” use_custom_width=”off” width_unit=”on” make_equal=”off” use_custom_gutter=”off”][et_pb_fullwidth_code global_parent=”136″ admin_label=”Post Header”][Page_Header_Start] Employment Law News [Page_Header_End][/et_pb_fullwidth_code][/et_pb_section][et_pb_section admin_label=”section”][et_pb_row admin_label=”row”][et_pb_column type=”3_4″][et_pb_text admin_label=”Text” background_layout=”light” text_orientation=”left” use_border_color=”off” border_color=”#ffffff” border_style=”solid”]

Beauty consultant who provided services through a chain of companies was not able to bring a discrimination claim

[post_details]

[Social-Share]

[post_tags]

The Court of Appeal has held that a beauty consultant who provided her services via a chain of companies was not ‘in employment’ under the Equality Act 2010 and therefore could not claim discrimination.

Mrs Halawi sold Shiseido cosmetics at a counter in the World Duty Free shop at Heathrow airport. She had set up her own limited company, Nohad Ltd; through this and a management company, CSA, Mrs Halawi provided Shiseido her services in selling its products in WDF’s space at the airport. Mrs Halawi was able to provide a substitute and had done so before; she was also able to refuse work offered. Mrs Halawi was paid only for time she spent working; she had no sick pay or holiday pay entitlement.

WDF revoked Mrs Halawi’s airside pass with the effect that she could no longer enter the airport. Mrs Halawi brought claims against CSA and WDF for discrimination. To bring her discrimination claim, she had to show that she was ‘in employment’ according to the Equality Act 2010.

The Court of Appeal held that Mrs Halawi was not employed by either CSA or WDF and she was unable to bring a discrimination claim. The Court found that Mrs Halawi’s right to send a substitute and the lack of any control over her work were incompatible with an employment relationship.

This case highlights that, where services are being provided through a structure of companies as part of a genuine business arrangement, protection from discrimination is unlikely.

Halawi v WDFG UK Ltd (t/a World Duty Free) [2014] EWCA Civ 1387

[/et_pb_text][/et_pb_column][et_pb_column type=”1_4″][et_pb_sidebar admin_label=”Sidebar” orientation=”right” area=”sidebar-1″ background_layout=”light” remove_border=”off”] [/et_pb_sidebar][/et_pb_column][/et_pb_row][/et_pb_section]

[et_pb_section admin_label=”Section” global_module=”136″ fullwidth=”on” specialty=”off” transparent_background=”off” background_color=”#ffffff” allow_player_pause=”off” inner_shadow=”off” parallax=”off” parallax_method=”off” padding_mobile=”off” make_fullwidth=”off” use_custom_width=”off” width_unit=”on” make_equal=”off” use_custom_gutter=”off”][et_pb_fullwidth_code global_parent=”136″ admin_label=”Post Header”][Page_Header_Start] Employment Law News [Page_Header_End][/et_pb_fullwidth_code][/et_pb_section][et_pb_section admin_label=”section”][et_pb_row admin_label=”row”][et_pb_column type=”3_4″][et_pb_text admin_label=”Text” background_layout=”light” text_orientation=”left” use_border_color=”off” border_color=”#ffffff” border_style=”solid”]

Failure to pay male employee enhanced additional paternity pay was not discriminatory

[post_details]

[Social-Share]

[post_tags]

A male employee who argued that his employer’s failure to pay him enhanced additional paternity pay was directly and indirectly discriminatory was unsuccessful in his claim. The Tribunal held that the appropriate comparator for direct discrimination is a female applicant for additional paternity leave who is the female spouse or civil partner of someone on maternity leave and, therefore, the claimant could not establish that he had been treated less favourably because he was a man. In any event, it held that the disparity in treatment was a proportionate means of keeping more women at Ford.

The claimant, Mr Shuter, worked for Ford. His wife gave birth on 25 December 2012 and returned to work from maternity leave on 15 July 2013. Mr Shuter took additional paternity leave in respect of his wife’s unclaimed maternity leave. While Ford paid female employees taking maternity leave up to 52 weeks full basic pay, it paid those taking additional paternity leave the statutory minimum pay.

Mr Shuter claimed that the failure of his employers to pay APL at the same rate that it did for maternity pay was both directly and indirectly discriminatory. Mr Shuter claimed that Ford’s policy was directly discriminatory because he was put at a disadvantage because of his gender and that he should be compared with a woman taking maternity leave after 20 weeks of giving birth for the purposes of his claim. He also argued that Ford’s policy was indirectly discriminatory because men were more likely to claim additional parental leave and, therefore, as a group were likely to be disadvantaged by the difference in treatment.

The Tribunal dismissed both of Mr Shuter’s claims. When considering Mr Shuter’s direct discrimination claim, it rejected his proposed comparator and held that the correct comparator for Mr Shuter would be a women applying for additional paternity leave i.e. the female spouse or civil partner of a women claiming maternity leave. Therefore, he was not being directly discriminated against because of his gender.

The Tribunal also considered Mr Shuter’s indirect discrimination claim. While Ford accepted that men were likely to be disadvantaged as a group in comparison to women because applicants for additional paternity leave were more likely to be men then women, it argued that it was a proportionate means of achieving a legitimate aim. The Tribunal held that Ford could justify its practice of paying women basic pay when on leave beyond 20 weeks because it was aiming to recruit and retain women in its workforce.

This decision is just a first instance decision and is therefore not binding but it does demonstrate the issues in balance with parental leave policies.

Shuter v Ford Motor Company Ltd ET/3203504/13

[/et_pb_text][/et_pb_column][et_pb_column type=”1_4″][et_pb_sidebar admin_label=”Sidebar” orientation=”right” area=”sidebar-1″ background_layout=”light” remove_border=”off”] [/et_pb_sidebar][/et_pb_column][/et_pb_row][/et_pb_section]

[et_pb_section admin_label=”Section” global_module=”136″ fullwidth=”on” specialty=”off” transparent_background=”off” background_color=”#ffffff” allow_player_pause=”off” inner_shadow=”off” parallax=”off” parallax_method=”off” padding_mobile=”off” make_fullwidth=”off” use_custom_width=”off” width_unit=”on” make_equal=”off” use_custom_gutter=”off”][et_pb_fullwidth_code global_parent=”136″ admin_label=”Post Header”][Page_Header_Start] Employment Law News [Page_Header_End][/et_pb_fullwidth_code][/et_pb_section][et_pb_section admin_label=”section”][et_pb_row admin_label=”row”][et_pb_column type=”3_4″][et_pb_text admin_label=”Text” background_layout=”light” text_orientation=”left” use_border_color=”off” border_color=”#ffffff” border_style=”solid”]

An award for injury to feelings for discrimination in connection with termination was taxable as a termination payment

[post_details]

[Social-Share]

[post_tags]

A Tribunal has held that a payment made to a claimant on the termination of his employment which related to discrimination and injury to feelings was taxable as a termination payment because it was connected with termination.

Income tax is payable on payments and other benefits received in connection with the termination of an individual’s employment in excess of £30,000. However, compensation for discrimination which is linked to discrimination occurring prior to the termination of employment is wholly exempt from tax.

Mr Moorthy brought proceedings against his former employee for unfair dismissal and age discrimination. The proceedings were settled and Mr Moorthy received £200,000 “in compensation for loss of office and employment”. Mr Moorthy informed HMRC that he did not believe that the payment was taxable. HMRC opened a formal enquiry and in August 2013 issued a notice stating that save for the first £30,000, the remainder was taxable.

The employee appealed HMRC’s decision. The Tribunal held that that the payment was taxable as HMRC had set out. It based its decision on the fact that it was a payment made in connection with the termination of the claimant’s employment. It held that regardless of whether part of the payment was also to compensate the claimant for discrimination, unfair dismissal, redundancy or other financial or non-financial loss was immaterial; because it was in connection with the termination of Mr Moorthy’s employment, it was taxable. The tribunal accepted that some compensation payments can be made which are not in connection with a termination and that these will not normally be taxable but this was not applicable in Mr Moorthy’s case.

Moorthy v HMRC [2014] UKFTT 834

[/et_pb_text][/et_pb_column][et_pb_column type=”1_4″][et_pb_sidebar admin_label=”Sidebar” orientation=”right” area=”sidebar-1″ background_layout=”light” remove_border=”off”] [/et_pb_sidebar][/et_pb_column][/et_pb_row][/et_pb_section]