What can employers do to provide a more inclusive work environment for Muslim staff?

Employment Law News

What can employers do to provide a more inclusive work environment for Muslim staff?

With Ramadan starting this evening, BDBF Senior Associate, Theo Nicou considers the Muslim Council of Britain’s Ramadan Guide which provides recommendations on what employers can do to provide a more inclusive work environment for Muslim staff.

What adaptations can employers implement for Ramadan?

Be open to having a discussion with employees who are fasting but don’t assume that all employees want to be treated differently because they are fasting.
Consider letting staff finish earlier if they are working through any break times.
Be accommodating to annual leave requests, in particular for employees wanting time off to celebrate Eid ul Fitr festival, marking the end of the holy month of Ramadan.
Be flexible in allowing employees to have breaks for afternoon prayers and, if possible, provide a prayer or quiet space.

What cultural considerations should employers be aware of and what everyday adaptations can they make?

Employers should be aware of cultural differences around handshaking and direct eye contact. The placing of a hand on heart (instead of a handshake between genders) in greeting is practiced in many Muslim communities and seen as a highly respectful act, as is Muslim men lowering their gaze when interacting with women, another marker of utmost respect and means of maintaining a modest disposition.
Take into consideration how dress codes and uniforms can incorporate headscarves should a Muslim member of staff wear it and provide hair nets or masks if there are health and safety considerations regarding beards.
Look into including halal and/or kosher (as it is also permissible for Muslims to eat) food and vegetarian dishes in canteens or whenever food or snacks are provided for staff.
Offer a range of activities designed to appeal to everyone, dedicated to building rapport between staff from different backgrounds. Muslim staff may not socialise in pubs, for example, so consider events in the social calendar that will accommodate for this difference in sensibilities.

Closing thoughts

Inclusivity is key to ensuring a happy and productive workforce. A number of the above practical changes are easy to implement but could go a long way to foster a more welcoming work environment for Muslim staff.

BDBF is a leading law firm based at Bank in the City of London specialising in employment law. If you would like to discuss any issues relating to the content of this article, please contact Theo Nicou (theonicou@bdbf.co.uk) or your usual BDBF contact.

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Competitive interview processes have the potential to disadvantage disabled candidates

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In the recent case of Hilaire v Luton Borough Council, the EAT held that a competitive interview process could disadvantage someone suffering from depression, meaning the duty to make reasonable adjustments would be triggered. However, it was also held that it will not necessarily be reasonable to dispense with the interview process altogether.

What happened in this case?

The Claimant suffered from depression and arthritis which caused him to suffer from lethargy, lack of motivation, problems with memory and concentration, persistent low mood, social disengagement and difficulty with normal social interaction. The employer was aware of the Claimant’s disability.

A redundancy situation arose, and the Claimant was invited to apply for a role within the new structure. The employer gave the Claimant extra time to prepare his application and offered him support in doing so. As part of the process, the Claimant was required to attend an interview. He said he could not attend the interview on the basis that he was unwell. The employer asked when he would be able to attend, and he did not reply.

The employer wished to resolve the recruitment process. It had already interviewed 13 candidates who were awaiting a response. The employer considered whether there was any other way of testing suitability other than an interview but decided there was not as it would mean treating candidates inconsistently. Therefore, it set a deadline for the Claimant’s interview to take place.

Three days before the new interview deadline, the Claimant said he would not attend as he was unwell. However, it is worth nothing that a few days later he was well enough to attend an internal appeal hearing regarding a warning he had received. He also wrote to the employer a few days later stating that even if he had not been unwell, he would not have attended the interview as he had lost confidence in his employer.

The Claimant was dismissed by reason of redundancy. He brought a claim alleging that the employer had failed to make a reasonable adjustment to the recruitment process. He argued that the requirement to attend an interview caused him a substantial disadvantage as a disabled person suffering with depression. In his view, postponing the interview was not sufficient to remove the disadvantage. Instead, the employer should have dispensed with the interview altogether and slotted him into the role.

The Employment Tribunal dismissed claim, finding that that the Claimant could have engaged in the interview process, but had chosen not to do so. This meant that the Claimant was not disadvantaged by his disability in the interview process. The Claimant appealed.

What was decided?

The EAT held that a competitive interview process (in terms of both attendance and performance) could clearly cause substantial disadvantage to a disabled person suffering with the problems that the Claimant had, thereby triggering the need to make reasonable adjustments.

However, in this case, the EAT agreed with the Tribunal that the Claimant’s disability had not, in fact, caused him to suffer a disadvantage. The Claimant’s non-attendance at the interview was nothing to do with his disability. Rather, he did not attend out of personal choice (because he had lost confidence in his employer). The fact that he had been able to attend the disciplinary appeal meeting at around the same time underlined this point.

Although the claim failed on causation grounds, for completeness, the EAT went on to consider the issue of the reasonableness of adjustments. In the EAT’s view, the only adjustment that could have alleviated the potential disadvantage in this case, was to have slotted the Claimant into the role without an interview. However, the EAT concluded that this would not have been reasonable as it would have disadvantaged other candidates. The EAT noted that “making an adjustment is not a vehicle for giving any advantage over and above removing the particular disadvantage”. It may be a reasonable adjustment in certain circumstances, but not where 13 other candidates were vying for the role and had already been through a competitive interview. In fact, in this case, there were no reasonable adjustments that could have been made.

What are the learning points for employers?

Although the Claimant lost, the important takeaway for employers is that it was found that a competitive interview process could substantially disadvantage a person with depression. Equally, this could be the case for people with other disabilities which would affect the ability to attend and/or perform well in an interview, for example, chronic fatigue syndrome, Long Covid or severe menopausal symptoms.

Where a worker is disadvantaged in this way, the duty to make reasonable adjustments will be triggered and employers must be proactive in considering what adjustments might help. There are a range of possible adjustments that might be suitable depending on the case, for example, conducting a shorter interview and/or conducting the interview remotely.

In some cases, slotting into the role without an interview might be a reasonable adjustment, but this will not necessarily be the case. The wider impact of a proposed adjustment will be relevant to whether or not it is reasonable.

Hilaire v Luton Borough Council

Brahams Dutt Badrick French LLP are a leading specialist employment law firm based at Bank in the City. If you would like to discuss any issues relating to the content of this article, please contact Amanda Steadman (AmandaSteadman@bdbf.co.uk) or your usual BDBF contact.

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Significant reforms ahead for the law on harassment at work

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The Government has backed a Private Members’ Bill aimed at extending the obligations on employers under the Equality Act 2010. Under the proposals, employers will have a new duty to take all reasonable steps to prevent sexual harassment at work and may be found liable for all forms of harassment (not just sexual harassment) committed by third parties.

What is the background to these proposals?

The current position is that sexual harassment in the workplace is unlawful and employers and individuals can be found liable in claims brought in the employment tribunal. However, employers can avoid being found vicariously liable for harassment committed by their workers if they can show that they have taken “all reasonable steps” to prevent such harassment from occurring. In this context, reasonable steps include things like implementing an anti-harassment policy; providing good quality and regular training to staff; and dealing with complaints effectively. In practice, most employers elect to take such steps, but there is no legal obligation to do so.

Until October 2013, the Equality Act 2010 contained provisions making employers liable for harassment of their staff by third parties (such as contractors or clients), although liability only arose where the worker had been harassed on at least three occasions. These provisions were repealed by the Coalition Government on 1 October 2013.

In July 2021, the Government committed to:

introduce a new legal duty on employers proactively to take all reasonable steps to protect workers from harassment; and
reinstate employer’s liability for the harassment of workers by third parties.

A new statutory Code of Practice and guidance was also promised, which would explain the steps that employers needed to take to prevent harassment. This would supplement the detailed technical guidance on sexual harassment published by the Equality and Human Rights Commission (the EHRC) in January 2020 (you can read our briefing on that guidance here).

Nearly 18 months later, the Government has taken no action to meet these commitments. However, the Liberal Democrat MP, Wera Hobhouse, has sponsored a Private Members’ Bill – the Worker Protection (Amendment of Equality Act 2010) Bill – which seeks to drive through these promises. The Government is backing the new Bill, meaning it has a good chance of getting onto the statute books even though it is a Private Members’ Bill.

What changes would the Bill make to the law on harassment?

Legal duty to prevent sexual harassment

First, the Bill would amend the Equality Act 2010 to introduce a mandatory duty on employers to take all reasonable steps to prevent sexual harassment of workers “in the course of their employment”. This would cover sexual harassment occurring in the workplace, but also at work-related events such as work Christmas parties or leaving drinks.

The Bill proposal appears narrower than the Government’s original commitment in that it applies to the prevention of sexual harassment only, and not harassment related to the other protected characteristics in the Equality Act 2010, such as race, sex or age.

The Bill provides that where an individual succeeds in a claim of sexual harassment against their employer, the employment tribunal must consider whether, and to what extent, the employer has breached the legal duty to prevent sexual harassment. Where a tribunal concludes that the employer has breached the duty, it may award an uplift to the compensation award. Any uplift must correlate to the extent of the employer’s breach but may not exceed 25%.

Where there is no claim before an employment tribunal of sexual harassment by a worker, the employment tribunal will not have jurisdiction to rule on whether an employer has breached its duty. In this situation, the employer’s duty may only be enforced by the EHRC.

Liability for third party harassment

Second, the Bill would make employers liable for the harassment of a worker by a third party. This liability is not confined to instances of third-party sexual harassment but covers all types of harassment under the Equality Act 2010 (e.g. on the grounds of race, sex, age, sexual orientation etc). Liability may also arise the first time that the harassment occurs. This represents an extension of the previous iteration of third-party harassment protection, where an employer was only liable after three instances of harassment.

The current “reasonable steps” defence will be extended to cover third-party harassment claims, meaning that where an employer can show that it had taken reasonable steps to prevent the third-party harassment from occurring it will not be liable. However, if the third-party harassment is sexual harassment, then the legal duty to prevent sexual harassment discussed above will also apply. If the employer has breached this duty, then compensation may be uplifted by up to 25%.

What will the changes mean for employers?

With the Government’s support, the Bill passed its second reading in the House of Commons on 21 October 2022. It will now progress to the Committee stage, which will allow detailed scrutiny of the Bill. After that, it would move to the Report stage and third reading and then to the House of Lords to start the process all over again. So, there is still some way to go before this becomes law. Further, the Bill states that its provisions will come into force one year from the day on which the Act is passed.

Therefore, the reforms are unlikely to come into force until 2024, meaning that there are no immediate changes for employers to make. However, it would be sensible to work on the assumption that the Bill will pass given that it has the Government’s backing, and it reflects the Government’s previous commitments.

If the Bill passes, employers will need to be able to demonstrate that they (i) are doing enough to discharge the new duty to prevent sexual harassment at work; and (ii) have taken all reasonable steps to prevent all forms of third-party harassment. In practice, we suspect that this will translate to taking the following steps:

Having a good suite of policies in place. The EHRC’s existing guidance recommends having separate policies for sexual harassment and other forms of harassment (or having one clearly delineated policy). These policies should also cohere with other relevant policies such as disciplinary and social media polices.
Raising awareness of the anti-harassment policies amongst the workforce. This could mean requiring employers to provide copies to staff at regular intervals and before events where harassment has occurred in the past (e.g. Christmas parties). The policies should be adapted as appropriate and also shared with third parties such as clients and contractors. In certain workplaces, it may be appropriate to put a notice on display to alert third parties to the employer’s expectations around the treatment of staff and the consequences of any harassment (e.g. a retailer could state that a customer who harasses a worker will be removed from the store).
Reviewing the anti-harassment policies every year. Policies should have an annual health check and be updated to reflect any legal changes and trends apparent from internal complaints, staff surveys and/or exit interviews.
Putting in place methods to detect harassment (including third party harassment). This could include informal one-to-ones, sickness return to work meetings, exit interviews and external reporting systems which allow anonymous reports. We have previously reported on how some employers are making use of apps which permit real time and anonymous reporting of sexual harassment.
Providing high quality and regular training to staff. As a recent decision highlighted, an employer won’t have taken reasonable steps if the training it provides to staff does not pass muster. Such training should also be tailored to the audience.
Dealing with harassment complaints effectively. This includes taking appropriate disciplinary action against the perpetrator of the harassment. Where the perpetrator is a third party, in some cases this may mean ending the relationship with them.

While there will probably be work for all employers to do, in many cases it should not require doing anything radically different to what is already in place. That said, getting the groundwork done now will mean you are on the front foot if and when these changes come into force.

We will keep you updated on the progress of the Bill.

Worker Protection (Amendment of Equality Act 2010) Bill 2022 – 23

Employee who had Covid at the date of dismissal, and later developed long Covid, was not disabled

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An Employment Tribunal has decided that an employee who was dismissed shortly after contracting Covid was not disabled for the purposes of the Equality Act 2010. Although the employee did go on to develop long Covid, it could not be said that this was likely to happen on the date she was dismissed.

What happened in this case?

The Claimant was employed by Sense Scotland, a disability services and awareness charity, from 9 July 2019 until her dismissal on 27 July 2021. She tested positive for Covid around 11 July 2021 and self-isolated until around 20 July 2021. The Claimant experienced a variety of Covid symptoms including fatigue, shortness of breath, aches and pains, headaches and brain fog. These symptoms continued even after the end of the self-isolation period and affected many aspects of her everyday life, for example she struggled with shopping and driving and ceased socialising and exercising.

On 26 July 2021, the Claimant booked an appointment to see her GP on 2 August 2021, to discuss the ongoing symptoms. However, Sense Scotland dismissed the Claimant the next day. The Claimant’s GP deemed her unfit to work between 2 August 2021 and 27 September 2021 and a diagnosis of “long Covid” was eventually made on 12 September 2021. The Claimant started a new full-time job on 23 September 2021, which she was able to perform with some adjustments.

The Claimant brought various claims against Sense Scotland, including for disability discrimination. A Preliminary Hearing was held to decide whether she was disabled on the date that she was dismissed.

What was decided?

After being infected with Covid, most people find that their symptoms resolve within four weeks. However, some experience symptoms for longer periods. “Long Covid” is a shorthand term used to describe symptoms that continue after the acute phase of a Covid infection. Employment Tribunals have previously accepted that some people suffering with long Covid will pass the disability test and so be protected from discrimination in the workplace. Indeed, in the recent cases of Matthews v Razors Edge Group Ltd and Burke v Turning Point Scotland, the employees were found to be disabled by reason of long Covid.

However, not everyone who suffers with long Covid will be disabled. Individuals will have to pass the four elements of the disability test as follows:

Does the person have a physical or mental impairment?
If yes, does this have an adverse effect on their ability to carry out normal day-to-day activities?
If yes, is the adverse effect substantial?
If yes, is the adverse effect also long-term i.e. has lasted more than 12 months, or is likely to last more than 12 months (in this context, “likely to” means “could well happen”)?

In this case, the Claimant passed the first three elements of the disability test. However, the Tribunal decided that, at the date of her dismissal, the Claimant’s impairment was properly described as Covid, rather than long Covid (as she had only contracted the disease about two weeks before the dismissal). Nonetheless, they said this had a substantial adverse effect on her day-to-day activities.

However, she fell at the final hurdle. At the time of the dismissal, the substantial adverse effect had only lasted for just over two weeks and the diagnosis of long Covid was not made until around six weeks after the dismissal. The Tribunal accepted that someone who contracts Covid is at risk of developing long Covid, which, in turn, may last for a year or more. Yet the Tribunal noted that the substantial majority of people who contract Covid do not go on to develop long Covid. While there was a risk that the Claimant would go on to develop long Covid and have it for a year or more, it could not be said that this was a risk that “could well happen”. Therefore, she failed the long-term element of the disability test.

What does this mean for employers?

This decision does not mean that those who do not have an official diagnosis of long Covid, or who have not been ill for a year, will never be disabled. Rather, it will always be a fact-specific question. Indeed, in Matthews the employee had only been ill for three months at the date of dismissal and had not been diagnosed with long Covid. Nevertheless, the Tribunal was satisfied of the likelihood of the condition lasting up to a year and held that the employee was disabled.

Although Covid is less prevalent today, our understanding of the disease has grown. Employers should be mindful that employees presenting with ongoing Covid symptoms many weeks or months after contracting Covid may be suffering from long Covid. Where it is known, or suspected, that employees have long Covid, they may qualify as disabled. This will trigger the duty to make reasonable adjustments and should also inform any potential dismissal process. Where an employee is disabled, employers will usually be expected to explore other less discriminatory options before moving to dismiss, for example, allowing more time for recovery or redeployment.

Quinn v Sense Scotland

BDBF is a law firm based at Bank in the City of London specialising in employment law. If you would like to discuss any issues relating to the content of this article, please contact Principal Knowledge Lawyer Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

Parliamentary Committee calls for the introduction of robust menopause discrimination laws

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The Women and Equalities Select Committee has completed its inquiry into the impact of the menopause in the workplace and called for major reforms in this area, including making menopause the tenth protected characteristic in the Equality Act 2010. We take stock of the recommendations in our latest briefing.

What was the purpose of the menopause inquiry?

On 23 July 2021, the House of Commons Women and Equalities Select Committee (the Committee) opened an inquiry into the impact of menopause in the workplace. The purpose of the inquiry was to receive evidence on current workplace practices and views on whether existing discrimination legislation sufficiently protects workers going through the menopause, or whether more needs to be done. Currently, discrimination against workers going through the menopause is only covered by the Equality Act 2010 where it is connected to one of the existing nine protected characteristics such as age, sex and disability. The inquiry also looked at whether employers should be compelled to put in place workplace menopause policies.

The inquiry closed on 17 September 2021 and the Committee published its report on 28 July 2022. The inquiry received over 80 written submissions from the public, legal and medical experts, health organisations, trade unions and academics. Oral evidence was also taken from these groups and business representatives.

What recommendations for change have been made?

The Committee’s report makes a number of recommendations in the fields of health, workplace and equality. In this briefing we consider the workplace and equality recommendations only.

Menopause Ambassador to lead the way in showcasing good practice to business

The report states that the Government has a key strategic role in helping businesses and should lead the way in developing and disseminating good practice on managing the menopause at work. The report asks the Government to appoint a “menopause ambassador” to work with stakeholders from business, unions and advisory groups to encourage and disseminate awareness, good practice and guidance to employers. The menopause ambassador should publish biannual reports on the progress made by businesses, including real life examples of good and poor practices.

It remains to be seen whether the Government will take forward this recommendation. However, in the meantime, it has already committed to appointing “Menopause Employment Champions” to spearhead a campaign outlining the benefits of recruiting and retaining menopausal workers.

Government should produce model menopause policies

Evidence to the inquiry was divided on whether workplaces should be legally required to have menopause policies. For example, the CIPD were opposed to compulsory policies, believing that this would promote a “tick box” approach instead of taking action aimed at securing real change on the ground.

The Committee was not persuaded that a legal requirement for every workplace to have a menopause policy would embed meaningful change. However, the report recommends that the Government produce a model menopause policy for employers, which should cover as a minimum:

how staff can request reasonable adjustments and other support;
advice on flexible working;
sick leave for menopausal symptoms; and
provisions for education, training and building a supporting culture.

Introduce Day 1 right to request flexible working

Flexible working was referred to repeatedly in the evidence before the inquiry as being particularly helpful for menopausal employees. Back in February 2021, the Committee had recommended the introduction of a “Day 1” right to request flexible working and later that year the Government opened a consultation on the issue. That consultation closed on 1 December 2021, but the response has yet to be published.

The report recommends that the Government should bring forward legislation before the end of the current Parliament to make the right to request flexible working a Day 1 right for all. In addition, the Government is urged to issue guidance encouraging employers to grant all reasonable requests for flexible working rather than placing the burden on the employees to justify their requests.

Large public sector employer should trial specific “menopause leave”

The report notes that menopausal symptoms can have a significant, and sometimes debilitating, impact on women at work, which often leads to periods of sickness absence. The presence of rigid sickness absence thresholds may trigger formal absence management processes which can lead to women leaving the workplace.

To counter this problem, the Committee asks the Government to work with a large public sector employer with a strong public profile to develop and pilot a specific “menopause leave” policy. The Government should publish proposals for a wider roll out within 12 months of the commencement of the scheme.

New guidance on the law should be published

Despite there being existing legal obligations under health and safety and equality laws, the report notes that neither the Health and Safety Executive (HSE) nor the Equality and Human Rights Commission (EHRC) has published any form of guidance on their websites in respect of the menopause. The HSE’s position is that they do not hear enough from people looking for this sort of guidance to justify producing it, however, they acknowledge that the lack of approaches could be down to embarrassment and/or lack of awareness of the legal obligations.

The report recommends that both the HSE and the EHRC publish guidance on the legal considerations when supporting employees experiencing menopause.

Commence dormant dual discrimination provisions in section 14 of the Equality Act 2010

Evidence to the inquiry was that because menopause is essentially an “intersectional” phenomenon (i.e. in the main it affects older women), the dormant dual discrimination provisions in the Equality Act 2010 should be enacted. Enacting these provisions would entitle a worker to complain of discrimination arising out of the combination of two protected characteristics, rather than one as is presently the case. This change would help menopausal workers who have typically found it difficult to succeed with complaints based on a single protected characteristic. The Committee took a robust approach on this issue, stating that the current law “does not serve or protect menopausal women” and that section 14 is “shelf ready” and should be commenced immediately.

However, this is the second time that the Government has been urged to commence the dual discrimination provisions to tackle the issue of menopause discrimination. In November 2021, the Government-appointed “Roundtable of Older Workers” recommended that the Government enact the dual discrimination provisions. The Government rejected their recommendation, stating that the existing legal framework provided sufficient protection and further changes were not needed. Therefore, it seems unlikely that the Government will change tack in response to this latest recommendation.

Consult on making menopause the tenth protected characteristic in the Equality Act 2010

There was considerable support for creating a new protected characteristic of menopause on the basis that it would provide a direct and clear protection to those experiencing discrimination because of menopause. Some of those giving evidence pointed out the disparity between the way pregnancy and menopause are treated in the workplace. Pregnancy is legally protected, and menopause is not, even though all women will experience menopause but not all women will experience pregnancy. Some of those giving evidence also argued that if a new protected characteristic was created this should include a duty to make reasonable adjustments, in the same way that there is for disabled workers.

The Committee was persuaded that a new protected characteristic should be created. The report recommends that the Government urgently consult on introducing a new protected characteristic, including a duty to make reasonable adjustments for menopausal employees. The report recommends that this consultation should launch by the end of January 2023.

What are the next steps?

The Government’s response to the Committee’s report is due to be published by 28 September 2022. However, the extended period of mourning following the Queen’s passing may mean this date is pushed back. Given the previous statements on the dual discrimination provisions, as well as the new Prime Minister’s deregulatory agenda, it seems unlikely that the Government will back radical legal reform in this area. What seems more likely is that the Government will commit to producing template policies and encouraging the publication of new guidance.

If you would like to learn more about menopause and the workplace, including what you can do to support your affected workers, you can view BDBF’s latest webinar on this topic here.

Menopause and the Workplace Report – 28 July 2022

Webinar: Menopause and the workplace: what employers need to know

In this 50-minute webinar, BDBF’s Principal Knowledge Lawyer Amanda Steadman and Senior Associate Blair Wassman consider the hot topic of menopause and the workplace. This webinar was originally delivered on 7 September 2022 and reflects our understanding as of that date. Do get in contact with either of the speakers if you would like to discuss any of the issues raised.

To view the PDF webinar slides please click on the image below, or view the recording of the webinar:

Please contact Amanda Steadman (amandasteadman@bdbf.co.uk), Blair Wassman (blairwassman@bdbf.co.uk), or your usual BDBF contact, for further advice.

https://www.youtube.com/watch?v=rzO9M3F8xBA

Worker who lost her role after she expressed gender critical beliefs on Twitter succeeds in direct discrimination and victimisation claims against employer

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An Employment Tribunal has ruled that an employer discriminated against and victimised a worker who lost her role after she had made straightforward statements of her gender critical beliefs on Twitter and in the workplace.

What happened in this case?

Ms Forstater was a visiting fellow of CGD Europe and also worked on specific projects for them on a consultancy basis. CGD Europe is linked to the Centre for Global Development based in the US.

Ms Forstater believes that:

Being male or female is a biological fact which is not capable of being changed and is not a feeling or identity. As a result, in her view, a trans woman is not really a woman and a trans man in not really a man.
A person can identify as another sex, ask people to refer to them by their identified sex and change their legal sex, but this does not, in fact, change their actual sex.

In late 2018, Ms Forstater began expressing her beliefs on her personal Twitter account. Colleagues from the Centre for Global Development in the US saw her tweets and raised concerns that they were transphobic and offensive. The matter was investigated.

Ms Forstater maintained that her statements were factually correct, but she said that out of courtesy she would respect a person’s preferred pronouns. She agreed to avoid discussing her views at work unless there was a particular need to do so. She also added a disclaimer to her Twitter account to make it clear that her views were her own and not those of CGD Europe. Nevertheless, the decision was taken not to renew Ms Forstater’s visiting fellowship, to end her consultancy work and not to offer her a contract of employment.

Ms Forstater claimed that she had suffered discrimination, victimisation, and harassment because of her philosophical beliefs. In June 2021 the Employment Appeal Tribunal decided that Ms Forstater’s beliefs qualified as protected philosophical beliefs under the Equality Act 2010. Having surmounted that hurdle, the case returned to the Employment Tribunal to decide whether she had, in fact, been discriminated against because of those beliefs.

What was decided?

The Tribunal decided that the way in in which Ms Forstater had manifested her beliefs had significantly influenced CGD Europe’s decision not to renew her fellowship or offer her a contract of employment. However, it could not be said that Ms Forstater’s tweets, or the other ways in which she manifested her beliefs, were objectively offensive or unreasonable. Rather, they were simple assertions of her belief and not unreasonable, particularly given the tone of the wider public debate on the issue. Therefore, CGD Europe’s actions were found to be directly discriminatory. Because Ms Forstater succeeded in this claim, it was not necessary to consider her complaints of harassment and indirect discrimination arising out of the same facts.

The Tribunal also decided that CGD Europe’s decision to remove Ms Forstater’s profile from their website after The Sunday Times had published an article about her legal case was an act of victimisation. Ms Forstater had also argued that the withdrawal of an offer of consultancy work was an act of victimisation. However, the Tribunal found that CGD Europe had not, in fact, withdrawn an offer of consultancy work and so this part of the claim failed.

What does this mean for employers?

This decision underlines that where a belief is protected, the expression or manifestation of that belief is also protected – to a point. The key question will be how the belief is expressed or manifested. Where the belief is expressed in a straightforward and objectively reasonable way, the worker will be protected from detrimental treatment. Interestingly, where the wider debate on the belief in question is polarised, the worker may be afforded greater latitude in exactly how they express themselves. Here, the “common currency” of the debate about trans rights meant that the use of mockery and satire was acceptable.

The difficulty for employers will be understanding when a worker’s behaviour tips over into being an unacceptable way of expressing their protected belief. Where the behaviour causes another worker to feel harassed it is likely to be on the wrong side of the line, for example “misgendering” a trans worker (i.e. using pronouns different to those that relate to the gender that the person concerned identifies as being). Indeed, in the recent case of Mackereth v DWP a doctor’s refusal to use vulnerable service users’ chosen pronouns was sufficient grounds for dismissal and was held not to be discriminatory.

What practical steps can employers take to manage this clash of rights?

Update relevant polices to reflect the fact that those holding gender critical beliefs and trans workers are protected from discrimination.
Set out the standards of behaviour expected from staff, including the need to treat colleagues with dignity and respect. Give examples of what is and is not acceptable. Explain that disciplinary action will follow where staff fail to meet such standards, up to and including dismissal.
Ensure that such policies are actually communicated and read by staff. Consider asking staff to provide a written acknowledgement that they have read and understood them.
Deliver equality training to staff, ensuring that it is thoughtful and forcefully presented and refreshed at regular intervals.
Respond quickly and effectively to complaints of discrimination or harassment.

Forstater v CGD Europe and others

Menopause reforms: Government ducks major change

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In July 2021, the Minister for Employment asked members of a “Roundtable of Older Workers” to look at the issue of menopause and employment in light of the impact that menopause can have on women’s working lives. The Roundtable members published their report on 25 November 2021 (the Report). The Report set out recommendations for Government, employers and wider societal and financial change. On 18 July 2022, the Government published its response to those recommendations (the Response). In this briefing we discuss the recommendations of most interest to employers.

Enact the dual discrimination provisions of the Equality Act 2010

The Report recommended that the Government enact the dual discrimination provisions set out in the Equality Act 2010. These provisions would entitle a worker to complain of discrimination arising out of the combination of two protected characteristics, rather than one as is presently the case. This change would help menopausal workers who have typically found it difficult to succeed with complaints based on a single protected characteristic (e.g. disability, age or sex).

However, the Government has declined to enact these provisions. In its view, the existing scheme provides sufficient protection and further changes are not needed. The Response states that “this is borne out by recent cases which show that employees have scope within the Act to challenge discriminatory treatment – claiming under one or more the three relevant characteristics”. This statement is somewhat surprising given that there have been so few menopause-related claims in the last five years (62 out of over 90,000) and even fewer successful claims (seven out of 62).

Launch a collaborative and Government-backed employer-led campaign

The Report recommended the launch of an employer-led campaign covering:

the importance of open conversations about the menopause in the workplace;
the importance of training line managers;
the importance of awareness-raising and action to combat bias and harassment;
the need for workplace adjustments;
the value of support groups and specialist support;
sick leave and performance management procedures;
flexible working rights; and
returner programmes to include and highlight post-menopausal opportunities.

The Government’s Response agrees that employers play a critical role in the effectiveness of menopause communications. Therefore, the Government supports this recommendation and has committed to appointing “Menopause Employment Champions” to work with business to spearhead a campaign outlining the benefits of recruiting and retaining menopausal workers.

The Government will also use its existing links and partnerships with business to increase the reach of menopause communications. It will also encourage the development of support within organisations by providing links to advice, guidance and case studies.

Larger employers to put in place workplace awareness, training and support via Employee Assistance Programmes

The Report recommended that large employers put in place workplace awareness, training and support via Employee Assistance Programmes (EAP) (or via a “menopause champion” where there is no EAP).

The Government’s Response says that it will encourage larger employers to ensure that menopause forms part of the EAP offering. Beyond this, it says that the Government is exploring options for additional support for women’s reproductive health issues within the workplace, including menopause.

What does this mean for employers?

These commitments do not compel employers to make any changes for menopausal workers and nor do they offer such workers any greater form of legal protection. However, the emphasis on raising awareness through better communications, offering training and providing support all contribute to the growing momentum around menopause as a workplace issue.

The Response is not the end of the matter. We are awaiting the recommendations of inquiries conducted by the Women and Equalities Committee and the All-Party Parliamentary Group on Menopause. That said, given the Government’s Response to this Report it seems unlikely that there will be changes to the law any time soon.

However, the focus on this issue, and the pressure to improve the position for menopausal workers, is unlikely to go away. Employers who wish to be considered employers of choice should take steps to support workers now, rather than wait to be forced to do so. If you would like to know more about how your business can support menopausal workers, please join our lunchtime webinar on this topic 7 September 2022. You can find out more about the webinar, and how to register, here.

Acas Code applied to discriminatory sham redundancy dismissal

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In the recent case of Coulson v Rentplus Ltd, the Employment Appeal Tribunal upheld a decision that the Acas Code of Practice on Disciplinary and Grievance Procedures applied to a sham redundancy dismissal that was tainted by discrimination. The Code had been completely disregarded, meaning that a maximum 25% uplift to the compensation was justified.

What happened in this case?

Ms Coulson was employed by Rentplus from 2015 as its Director of Partnerships. In Spring 2017, Mr Collins was appointed as a consultant, with a view to him taking over as CEO later in the year. Around this time, a decision was taken to dismiss Ms Coulson, albeit not immediately. Mr Collins duly took over as CEO in the Autumn and, from that point onwards, Ms Coulson said she felt that she was being “frozen out”.

In early 2018, Rentplus embarked on what they badged as a redundancy exercise, despite the fact that the number of job roles were due to increase. Ms Coulson attended redundancy consultation meetings in April and May 2018. She also submitted a grievance alleging that she had been marginalised by Mr Collins, and that her role was not genuinely redundant. Her grievance (and subsequent appeal) was rejected, and Ms Coulson was eventually dismissed by reason of redundancy.

She brought claims for unfair dismissal and direct sex discrimination. The Employment Tribunal decided that the dismissal was unfair on the basis that the decision to dismiss had been taken in Spring 2017, meaning the redundancy consultation process was a “total sham”. The Tribunal also said the dismissal was tainted by sex discrimination. Separately, the Tribunal found the grievance process to be just as much of a sham as the redundancy process.

When awarding compensation for the unfair dismissal, the Tribunal awarded an uplift of 25% due to the company’s “egregious failures” to comply with the Acas Code of Practice on Disciplinary and Grievance Procedures (the Code). However, this issue was only dealt with very briefly in the judgment.

Rentplus appealed, arguing that the Tribunal had been wrong to say the Code applied where the reason for dismissal was either redundancy or sex discrimination. Further, even if the Code did apply, the Tribunal had not identified the failings for which the uplift was being made and did not explain the basis on which it had determined the amount of the uplift.

What did the EAT decide?

The EAT noted that the Tribunal’s decision on the uplift would have benefited from a more detailed approach. However, the EAT was prepared to look at the judgment overall and consider whether, on a fair reading, the Tribunal judge had considered the four key issues.

Is the claim one which raises a matter to which the Code applies?

The EAT noted the Code applies to “disciplinary situations”. This means that there is an issue of potential misconduct or poor performance to be addressed, regardless of how it is badged by the employer. The EAT highlighted that employers cannot sidestep the Code by dressing up a dismissal that flows from one of these things by pretending it is something else, for example, a redundancy. It was also noted that a finding of discrimination does not preclude the application of the Code. For example, if an employer dismisses for perceived poor performance, which is partly a result of discriminatory assumptions, there will still be a disciplinary situation and the Code will apply.

In Ms Coulson’s case, redundancy had been rejected as the true reason for dismissal. She had been dismissed because there was a belief that there were problems with her capability and/or conduct and that belief was tainted by sex discrimination. As such, this was a disciplinary situation to which the Code applied.

If yes, has there been a failure to comply with the Code in relation to that matter?

The EAT drew a distinction between employers who attempt to comply with the Code but fall short, and those who act in bad faith and pretend to apply the letter of the Code but have already made their decision. In the former scenario, it may not be appropriate to award an uplift, whereas it may be appropriate to do so in the latter. In Ms Coulson’s case, it was clear that the Tribunal had concluded that the dismissal process was a sham, the dismissal was pre-determined and there had been a total failure to comply with the Code.

If yes, was the failure to comply with the Code unreasonable?

The EAT noted that in order for an uplift to apply, it is not enough that there has been a failure to comply with the Code, the failure must also be unreasonable. In Ms Coulson’s case the Tribunal had said the breaches were “egregious”. Therefore, it was clear that the failures in this case went beyond being merely unreasonable.

If yes, is it just and equitable to award an uplift because of the failure to comply with the Code and, if so, by what percentage?

The EAT noted that Tribunals must apply the four-stage test set out in the case of Slade v Briggs to decide whether it is right to award an uplift and, if so, by how much. Generally, Tribunals should identify the failings for which the uplift is being made by reference to the relevant parts of the Code. However, in Ms Coulson’s case, the Tribunal had said the dismissal process was a “complete sham” and Rentplus had acted in bad faith such that there was a total failure to apply the Code. Therefore, they had been entitled to award a 25% uplift.

What does this mean for employers?

This decision reminds us that the question of whether the Code applies is one of substance and not form. The key question you should ask is: do we consider the employee to be culpable for something that we wish to address in a formal process? If yes, the chances are that the Code will apply. Given the risk of an uplift, the safest course of action will be to observe the principles set out in the Code.

The decision also tells us that even if discrimination is present, there may still be a “disciplinary situation” meaning the Code applies. This is important because where action is tainted by discrimination, the usual cap on compensation is lifted. This means that the uplift for breaching the Code may be applied to a higher sum than would have otherwise been the case. Indeed, in one recent discrimination case, a 20% uplift of over £317,000 was awarded, because the overall compensation was so high.

Rentplus UK Ltd v Coulson

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Failure to provide adequate breastfeeding facilities was harassment related to sex

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An Employment Tribunal has held that a woman suffered harassment related to sex when her employer failed to provide a private room for her to express breastmilk while at work. The employee was forced to express milk in the toilets or her car, which had the effect of creating an unwanted, degrading or humiliating environment for her.

What happened in this case?

Ms Mellor was a school-teacher at MFG Academies Trust. While she was pregnant, she told the school that when she returned to work after maternity leave, she would need somewhere to express breast milk. She raised this again while on maternity leave and again on her return to work in September 2020. However, the School failed to provide her with an appropriate room.

This meant that she was forced to express milk in either the school toilets or her car during her lunch break. She was given 25 minutes for lunch, 20 minutes of which was needed to express milk, meaning she was forced to eat her lunch at the same time.

Having chosen to continue breastfeeding, it was a necessity for Ms Mellor to express, as not doing so would cause her to experience embarrassing leakages and she could develop mastitis (and had done so in the past).

Ms Mellor brought claims of direct and indirect discrimination and harassment related to sex against the school.

What was decided?

Direct discrimination

Ms Mellor compared herself to the hypothetical comparator of a male teacher injecting himself with insulin. The school confirmed that they would have provided such a male teacher with appropriate space if asked. Nevertheless, the Tribunal decided this claim failed because Ms Mellor was unable to show that the treatment she received was because of her sex. They found that the treatment was because of the incompetence of the school, rather than because she was a woman.

Indirect discrimination

The Tribunal held that the school’s practice of not providing suitable facilities to express milk did not put women at a particular disadvantage in comparison to men because “biological men have no interest in the provision of facilities for expressing breastmilk”.

Essentially the Tribunal said they were bound by a previous case, which stated that indirect discrimination cannot be shown without meaningfully applying the practice to both men and women. Therefore, as needing a space to express breastmilk was solely a biological female function this claim had to fail.

Harassment

The Tribunal found that Ms Mellor genuinely and reasonably had no choice but to express breast milk in either the toilets or her car. It also found that forcing her to express milk while eating her lunch, and potentially being seen by pupils, was unwanted conduct and had the effect of creating a degrading or humiliating environment for her.

They also held it was related to Ms Mellor’s sex, as the need for privacy to express milk came from the intimate nature of the activity, because she is a woman.

What does this mean for employers?

Although there is no statutory right to the provision of facilities at work to express milk, there is guidance from the Health and Safety Executive which recommends that employers should provide facilities such as a private, clean environment (other than toilets) and a fridge to store the expressed milk. Employers should give careful consideration to any request for a space from a worker who is expressing milk since there is a risk of harassment depending on the particular circumstances.

Mellor v MFG Academies Trust

BDBF is a law firm based at Bank in the City of London specialising in employment law. If you would like to discuss any issues relating to the content of this article, please contact Associate Hannah Lynn (hannahlynn@bdbf.co.uk), Principal Knowledge Lawyer Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

Employment Tribunal decides that long Covid may amount to a disability

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In Burke v Turning Point Scotland an Employment Tribunal decided that an employee who had suffered with Covid symptoms for around nine months was disabled and could proceed with a disability discrimination claim.

What happened in this case?

Mr Burke was employed as a caretaker from April 2001. He caught Covid in November 2020. After the initial isolation period, his symptoms continued and included serious fatigue, severe headaches, joint pain, and insomnia. His symptoms meant he could not undertake ordinary household tasks such as cleaning, ironing, or cooking and would tire very easily.

Mr Burke went on sick leave from November 2020. He obtained Fit Notes from his doctor, which suggested that he had long Covid and post-viral fatigue syndrome. The employer sought two occupational health reports in April and June 2020. These contradicted the Fit Notes and stated that Mr Burke was fit to return to work and that it was unlikely that he was disabled.

However, Mr Burke’s symptoms worsened, and he did not return to work. The company eventually dismissed him on the grounds of ill-health in August 2021. Mr Burke brought a claim for disability discrimination. A preliminary hearing was held to decide whether Mr Burke was “disabled” for the purposes of discrimination law (being the first hurdle required to progress a disability discrimination claim).

What was decided?

The Employment Tribunal found Mr Burke to be a credible witness who had not exaggerated his symptoms (especially when there was no financial benefit to him in remaining on long-term sick leave) and that the post-viral fatigue syndrome caused by Covid amounted to a physical impairment.

The Tribunal also decided that the condition had a substantial impact on his ability to undertake day-to-day activities and (at the time of his dismissal) his symptoms were likely to last for 12 months. Therefore, the Tribunal concluded that Mr Burke was disabled and could proceed with his claim for disability discrimination.

What does this mean for employers?

Last month, we discussed the question of whether long Covid could amount to a disability. Despite some confusing guidance from the Equality and Human Rights Commission, we concluded that long Covid would, in some cases, amount to a disability. This latest decision supports that view.

Employers should be aware that employees with long Covid may be disabled, meaning that they will be protected from discrimination and that reasonable adjustments should be made for them. This could include things like offering a phased return, a part-time hours arrangement or adjusting trigger points in absence management policies.

This decision is also a useful reminder for employers not to rely on occupational health reports to make conclusive determinations about whether or not an employee is disabled.

Burke v Turning Point Scotland

BDBF is a law firm based at Bank in the City of London specialising in employment law. If you would like to discuss any issues relating to the content of this article, please contact Managing Associate Emily Plosker (emilyplosker@bdbf.co.uk), Principal Knowledge Lawyer Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

Calling a colleague “bald” can amount to harassment related to sex

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In the recent case of Finn v The British Bung Manufacturing Company Limited an Employment Tribunal held that calling an employee “bald” was harassment related to sex. This was the case even though the “bald” comment was held to have been made on only one occasion.

What happened in this case?

Mr Finn was employed as an electrician by The British Bung Manufacturing Company Limited (the Company) for nearly 24 years. In May 2021, he was dismissed for misconduct. Following his dismissal, Mr Finn brought a suite of claims against the Company including for harassment on the grounds of age and sex, wrongful dismissal, ordinary unfair dismissal, automatic unfair dismissal relating to health and safety and whistleblowing protected disclosures, detriments relating to health and safety and whistleblowing protected disclosures, and victimisation.

Mr Finn brought certain of those claims, including the harassment claim which is the focus of this article, against a colleague, Mr King, who, Mr Finn claimed, had called him an “old bald c***” in July 2019 and, again, in March 2021. After the first comment, Mr Finn had been prepared to let bygones be bygones, and did not raise a formal complaint. There was no evidence of further tensions between Mr Finn and Mr King until the second comment was made in March 2021.

Following the second comment, Mr Finn left the workplace and only returned some two weeks’ later. Upon his return, he attended a meeting with the Company’s Managing Director and Company Secretary at which he produced a statement which clearly displayed the words “West Yorkshire Police” at the top of the document. The Company maintained that by reporting the matter to the police, Mr Finn had breached the relationship of trust and confidence between himself and the Company, and the Company dismissed him following a disciplinary hearing.

The dismissal took place despite repeated protestations by Mr Finn and his son (who was a police officer at West Yorkshire Police) that the matter had not, in fact, been reported to the West Yorkshire Police and was not logged within the police system.

What was decided?

The Employment Tribunal dismissed Mr Finn’s claim of harassment related to age as it held that Mr King had not used the word “old” when he had described Mr Finn as a “bald c***” in July 2019 and that he had not used the words “old bald c***” in March 2021. In any event, the Tribunal held that men of all ages could suffer from baldness and not just those who could be described as old.

However, Mr Finn was successful in his claim for harassment related to sex. The Tribunal found that Mr King had threatened Mr Finn in July 2019 and called him a “bald c***”. The Tribunal found the word “bald” used in this pejorative manner was unwanted conduct. Whilst the Tribunal accepted that “industrial language” was commonplace on the factory floor, it found that Mr King had overstepped the mark by making remarks about Mr Finn’s appearance. The Tribunal reasoned that there was no evidence that Mr Finn complained about the term “c***” used towards him but, instead, complained about the words “old” and “bald” which demonstrated that Mr Finn had been particularly affronted by those words, indicating that the conduct was unwanted.

Mr King admitted in evidence that he had intended to threaten and insult Mr Finn in July 2019 and the Tribunal held that Mr King’s use of the word “bald” had both the purpose and effect of violating Mr Finn’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for him.

On the facts before it, the Tribunal established that there was a clear link between the unwanted harassing words on the one hand and the protected characteristic of sex on the other, given that baldness predominantly affects men and that Mr King had set out with the intention of denigrating Mr Finn based on his baldness.

Although Mr Finn’s claim was 18 months out of time, the Tribunal held that it was just and equitable to extend time to allow Mr Finn to bring his claim.

What does this mean for employers?

The takeaway from this case is that Employment Tribunals are willing to interpret the law purposively and extend time where necessary to allow individuals to bring claims against employers where there are good grounds to do so.

Employers should take steps to ensure that training on bullying, harassment and discrimination is regularly provided, refreshed, and documented so that colleagues understand the risks of overstepping the mark when commenting on another colleague’s personal appearance and characteristics.

If a colleague raises concerns over remarks that have been made about their personal appearance, it is advisable to investigate matters thoroughly to determine whether further action should be taken against the alleged perpetrator, and to improve the culture of your workplace generally. Failure to take such steps could lead time-consuming grievances and Tribunal claims and poor staff morale.

Finn v The British Bung Manufacturing Company Ltd and anor

BDBF is a law firm based at Bank in the City of London specialising in employment law. If you would like to discuss any issues relating to the content of this article, please contact employment lawyers James Hockley (jameshockley@bdbf.co.uk), Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.