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In the case of X v Y, an Employment Tribunal decided that a claimant’s fear of catching COVID-19, and her belief that she needed to protect herself and her partner from catching it, was not a protected belief for the purposes of discrimination legislation. 

What happened in this case?

The first national lockdown was lifted in July 2020 and employers were permitted to return workers to the workplace.  In this case, the claimant took the decision not to return to the workplace on the grounds of health and safety connected to COVID.

In addition to concerns about health and safety in the workplace, the claimant said she was fearful of contracting the virus herself and passing it on to her vulnerable partner.  She explained her position to her employer and said she would not be returning to work.  Her employer stopped paying her wages.

The claimant brought various claims in the Employment Tribunal, including that the employer’s actions amounted to discrimination on the grounds of her protected belief, which was described as “a fear of catching COVID and a need to protect herself and others”.  

What was decided?

We know that workers are protected from discrimination in employment on the grounds of their religion or their religious or philosophical belief.   However, only philosophical beliefs which meet a certain standard are protected.  In order to be covered, a philosophical belief must:

1. be genuinely held;
2. be a belief and not a mere opinion or viewpoint based on the present state of information available;
3. concern a weighty and substantial aspect of human life and behaviour;
4. have a certain level of cogency, seriousness, cohesion and importance; and
5. be worthy of respect in a democratic society and not be incompatible with human dignity or conflict with the fundamental rights of others.

The Employment Tribunal decided that the first, fourth and fifth criteria were met, but the second and third were not.

As to the second criterion, it was decided that the claimant’s fear did not amount to a belief.  Rather, it was an instinctive reaction to a threat of physical harm and the need to take steps to avoid or reduce that threat.  Further, a view that certain actions (e.g. attending a crowded place) would increase the risk of contracting COVID, was an opinion based on the state of information available at the time.

As to the third criterion, the Tribunal said that fears about the harm caused by COVID are weighty and substantial and not minor or trivial.  They also concern aspects of human life and behaviour.  The fact that such a fear could be descried as time-specific (i.e. for length of the pandemic) would not, in itself, mean this criterion could not be met.  However, in the claimant’s case, her fear concerned herself and her partner only – there was no wider concern for others.

Accordingly, the claimant’s discrimination complaint was not allowed to proceed.

What does this decision mean for employers?

As the working from home guidance is lifted once more, many employers will be looking to bring workers back to the workplace for some, or all, of the time.  Some workers may be fearful about the return.  This case shows that if negative consequences follow a refusal to return, a worker is unlikely to succeed in a philosophical belief discrimination claim.  Even if a claimant could demonstrate concern for a wider group of people (to satisfy the third criterion), it is difficult to see how they would satisfy the “belief not viewpoint or opinion” requirement.

However, employers should remember that employees in this situation may have other valid claims.  For example, if employees raise concerns about the safety of the workplace and suffers negative consequences they may be protected against detriment and dismissal (under special rules governing health and safety disclosures and/or whistleblowing laws).  In addition, if employees, or someone they live with, are vulnerable to COVID and qualify as disabled, they could argue that a requirement to return to work amounted to indirect disability discrimination.

For these reasons, employers faced with reluctant returners should always engage with employees to understand their concerns and make appropriate adjustments where needed.  It would also be sensible to share workplace risk assessments with staff to reassure them of the steps taken at work to protect their wellbeing.

X v Y

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

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In Judd v Cabinet Office the Employment Appeal Tribunal upheld a decision that the withdrawal of an overseas secondment opportunity on health and safety grounds was not disability discrimination.  The appeal turned on whether the employer had acted disproportionately in withdrawing the opportunity, rather than allowing the employee to go with safeguards in place.

What happened in this case?

The claimant applied for an overseas secondment to Montenegro and was offered a placement in September 2018.   A few months earlier, she had been the victim of a crime, which had had a negative impact on her health and wellbeing. In fact, she had had two significant health episodes which had resulted in her attending hospital on an emergency basis.

The claimant was required to undergo medical clearance. This was undertaken by Healix, a contractor which provided risk assessments for proposed transfers and secondments abroad. In October 2018, Healix advised the employer that the claimant was “high risk” and should not travel to Montenegro for the time being.

In November 2018, the claimant was then assessed by the employer’s occupational health service. She did not disclose her complete medical history, including the two emergency trips to hospital. Based on incomplete information, Occupational Health assessed her as fit to travel but made certain recommendations, such as registering with a local doctor who could liaise with her GP, taking out appropriate medical insurance, and producing a wellbeing and contingency plan for repatriation in the event of an emergency.  Healix disagreed with this assessment and highlighted that these measures were undeliverable.  As a result, the employer withdrew the secondment offer.

In January 2019, Occupational Health issued another report following two further assessments and having reviewed a letter from the claimant’s consultant which referred to one of the two episodes that had resulted in emergency hospital admission.  The report said the claimant was fit to undertake the secondment, subject to the implementation of its proposals

The employer refused to reinstate the secondment offer and the claimant brought a claim for disability discrimination.

What did the EAT decide?

It was not disputed that the claimant had a disability, nor that the withdrawal of the secondment opportunity constituted unfavourable treatment because of something arising in consequence of her disability.  The dispute centred on whether that unfavourable treatment could be justified.  If it could, the claim would fail.  It was agreed that the employer’s aim was to protect the health, safety and wellbeing of its employees when working abroad. The key question was whether it had acted proportionately.  In other words, could it have achieved the health and safety aim by less discriminatory means?

The Employment Tribunal had found that Healix had classified the claimant as “high risk” which was highly unusual and, indeed, a first for the employer.  The Tribunal accepted that if the same medical emergency happened to the claimant in Montenegro as had happened in the UK, she would not have had the same joined-up services available.  The Tribunal accepted that the assessment was not a permanent restriction but one that could be reviewed after about a year and it was likely that more secondment opportunities would arise.  The Tribunal concluded that there was no alternative action that would have overcome the obstacles and so it dismissed the claim.  It also dismissed the claim that there had been a failure to make reasonable adjustments.

At appeal, the claimant sought to argue that the Tribunal had failed to consider other factors relevant to proportionality when dismissing her case. However, the EAT went on to find that the Tribunal’s findings were not perverse and there was no legal error in its approach. It dismissed her appeal.

What does this mean for employers?

This case does not mean that disabled employees can be excluded from secondment opportunities, even those which carry risk to them.  There may be reasonable steps that an employer can take to mitigate the risk.  It will depend on the particular circumstances of the case.  Here, there was nothing the employer could reasonably do.

What this case does show is that employers must be careful when making offers to employees in situations where risk assessments are required.  Offers should be made conditional upon satisfactory clearance being obtained.  This should be spelt out in any secondment policy and in the secondment offer letter itself.

Even where an employer genuinely believes it is acting in an employee’s best interests, the withdrawal of an opportunity is likely to cause bad feeling.  Having clear and open lines of communication may help to manage expectations and defuse a difficult situation which might otherwise arise.

Judd v Cabinet Office

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

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After a year off, office Christmas parties are back and – Omicron permitting – look set to be bigger than ever in 2021. While this is a great opportunity for the team to get together in person after being isolated for much of the past two years, employers need to ensure that the celebrations include the whole workforce.

The risks of getting it wrong range from a disgruntled less productive workforce and flight risks, to  employment tribunal claims of discrimination and constructive dismissal to name a few.

Making the Christmas party a truly inclusive event takes more than ensuring that everyone is invited. While care should be taken to ensure that no one is missed from the guest list (consider, for example, staff who are on long-term sick leave or maternity / other forms of family leave), it is also important that staff know the event is voluntary. There may be many reasons people don’t want to attend the party, and it should be made clear that they will not suffer a disadvantage if they choose not to attend.

Each workforce is individual. Accordingly, it is important for employers to speak to their staff about what they will enjoy. After all, this is supposed to be a celebration and a reward for hard work. For smaller organisations, this can be done in a team meeting, whereas larger organisations may need to form a committee made up of different sections of the workforce. As well as talking to staff beforehand, it is important to obtain feedback after the event that can be used to plan future events.

As a starting point, Senior Associate Clare Brereton sets out below some guidance on matters employers should consider each party season.

1. Name of the party

For some people, the very fact that their employer is having a “Christmas” party at all could make them feel excluded. The UK is made up of people of many different faiths, who practice their faith in different ways and others have no faith.

Given the time of year, it is likely to be difficult to avoid any mention of “Christmas”, but Christmas does not need to be the focus of the event. For example, replace “Christmas” with “festive” or “winter” party. The menu does not need to include a Christmas dinner. Traditions such as Christmas crackers and “Secret Santa” could be replaced with other games, such as word games or an awards ceremony celebrating special achievements over the past year. Christmas music does not need to be played (and, indeed, many party attendees may welcome the break).

2. The day and date of the party

Although it is likely to be almost impossible to select a day and time when everyone who wants to attend the party can do so, there are steps that an employer can take to ensure groups of people are not excluded. It is important to avoid having the party on a date that clashes with a religious holiday as employees of those faiths will have other commitments on those days.

When looking at a date more generally, there are some factors that need to be considered. For example, there may be one day of the week which is the non-working day for the majority of an employer’s workforce, and it would be sensible to try and avoid having the party on that day. If there are Jewish employees who observe Shabbat, then holding the party on a Friday evening would mean that they would not be able to attend. If the event is in the evening, some employees may struggle to find childcare.

If possible, employers should consult with the workforce in good time to identify whether there are any dates and/or days of the week on which they would not be able to attend the party. Once a date is set, give staff as much notice as possible.

3. Venue of the party

The location of the party is also significant. Physical features of a venue can make it more difficult for people with certain disabilities to attend. The need for the party space to be wheel-chair accessible is likely to be high on the list of an employer’s requirements, but employers should also consider what the noise levels and atmosphere of the venue will be like when it is full of people. If loud music will be playing it can be more difficult for wheel-chair users or those with certain conditions (including ADHD) to participate in conversations, particularly if the venue is crowded.

Employers also need to take care to consider employees with hidden disabilities. The past year has been very difficult for many people, and some employees may experience social anxiety at the prospect of a crowded party space, especially given the arrival of the Omicron variant. Therefore, consider the size and capacity of the venue and whether it is feasible to have the party in a larger venue which permits social distancing and has natural ventilation.

Employers might wish to take other steps to ensure the heath and safety of their employees is safeguarded during this time, for example asking employees to take a lateral flow test before attending the party and to wear face coverings in particularly crowded areas (e.g. lifts or queues for the cloakroom).  And, of course, anyone experiencing COVID-19 symptoms should be told not to attend.

4. Alcohol 

The stereotypical office Christmas party involves warm white wine, some crisps and people standing around chatting. While the quality of the catering is often of a higher standard than this, difficulties can arise if the party is too focused on alcohol.

There are many reasons why people do not drink alcohol, including pregnancy and breastfeeding, religious, cultural and health reasons. While banning alcohol altogether is unlikely to be necessary, it is important to ensure that there are high quality non-alcoholic drinks available and that the format of the party is not such that the only “activity” is drinking. Employees should not feel pressured into drinking more than they want to and it is important that it is made clear that harassment of other colleagues will not be tolerated.  You can read more about how employers can manage the risk of harassment here.

5. Catering

Food is a vital part of all parties, but hosting an inclusive event involves more than making sure there are vegetarian options available. Many venues are used to catering for a wide range of dietary requirements (e.g. vegan, kosher, halal, nut-free, gluten-free), so it should not be difficult for employers to ensure that all of their staff are catered for.

The easiest thing to do is to ask employees what their dietary requirements are before selecting a venue, so that you know in advance whether your chosen venue can meet those requirements.

And finally…

While it is important to remember the risks of getting it wrong, hosting a successful party at this time of year can be hugely beneficial to morale. A good employer will know its workforce and the type of event that staff will enjoy. Start by considering what would be a suitable celebration for your organisation and go from there. If in doubt ask the workforce for suggestions, there could be a great idea just waiting to be discovered!

If you would like to discuss any issues relating to the content of this article, please contact Clare Brereton (clarebrereton@bdbf.co.uk), or your usual BDBF contact.

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The festive season is upon us and many are ready to embrace once again the annual Christmas party as we emerge from the restrictions of the pandemic.

Whilst most events go ahead hitch free, unfortunately incidents of inappropriate behaviour are not uncommon at these types of functions. Reports of sexual harassment often increase at this time of year. This can result in employers having to field serious complaints and investigate members of staff who have overstepped the line.

Shockingly, 72% of the UK population have experienced at least one form of sexual harassment in their lifetime and 29% of employed individuals experienced sexual harassment at work. Soberingly, statistics show that only 15%formally reported this to their employer.

As employers are liable for the conduct of their employees and have a duty to safeguard the health and safety of employees, it is important that employers take steps to prevent and deal with inappropriate behaviour. In this briefing, BDBF Associate Blair Wassman explores what constitutes harassment and sexual harassment, and what steps employers can take ahead of the end-of-year festivities.

What is harassment?

Harassment is unwanted conduct related to a protected characteristic (for example, sex, race or sexual orientation) which has the purpose or effect of either violating the victim’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.

Sexual harassment is unwanted conduct of a sexual nature, which includes unwelcomed touching, sexual comments or jokes, suggestive looks or gestures and propositions and advances.

What does the law say about liability?

As a general rule, employers are liable for their employee’s actions.

It is a myth that where functions happen outside of the office employers are no longer liable for their employees’ conduct. Whilst this may be true in some instances, the default position is that employers are vicariously liable for acts of harassment committed by their employees during the “course of their employment” regardless of whether the employer knew or approved of the acts. This includes acts which are performed out of the employer’s premises, for example, whilst employees are working remotely as well as at work social functions which take place after hours.

This means that countless employers have found themselves liable for the acts of employees which have occurred at the pub after work, or, indeed, at Christmas parties. However, employers do have a defence available to them. If an employer is able to demonstrate they took all “reasonable steps” to prevent the perpetrator from doing the particular act, they may avoid being held liable.

Such reasonable steps can include:

• effective anti-harassment policies;
• appropriate reporting procedures and management of complaints;
• regular training for managers; and
• protection of victims.

Tips for employers

To try to avoid such misbehaviour and limit risks, employers should consider taking the following steps:

• Conduct a risk assessment: think about the venue and whether there are areas which are concealed (maybe re-think the dark photobooth in the far corner!). Consider how employees will get home following the function, for example, could you assist with a taxi service?

• Lead by example: encourage senior staff to limit their alcohol intake and to keep interactions professional. If they witness inappropriate behaviour, they should not turn a blind eye, but intervene if necessary and also report the acts to HR.

• Timing: consider whether a lunch or afternoon event is more suitable than the traditional evening party, which may, in turn, limit alcohol consumption and risk of harassment.

• Don’t authorise “after parties”: as tempting as it may be to continue the celebrations after the official work function, it is advisable for employers to distance themselves from “after parties”. This includes expressly stating that the official function is the only function funded and approved by the employer and any events afterwards are not sanctioned by the employer and discouraged for the safety of all employees.

• Remind employees of what is expected of them: a reminder about workplace policies related to harassment before such events is helpful, as well as the procedures which are in place to deal with any concerns.

• Take complaints seriously: if you receive complaints following such events, ensure that they are properly investigated and treated with the necessary degree of confidentiality and sensitivity. Reassure the victim and put mechanisms in place to ensure their protection, if necessary.

• Be supportive and have open communication lines: try to foster a culture where employees are not fearful of complaining about incidents of harassment. Appoint workplace champions and encourage employees to come forward about such incidents.

• Hold offending parties accountable: gone are the days where employers can write-off unwanted interactions as “banter”. If employees have committed acts of harassment, regardless of their seniority, they should be held accountable and disciplined if they are found to be guilty.

Like most things in life, prevention is better than cure. Employers giving careful thought to their end-of-year functions, and following these recommendations, is certainly time well spent. It also demonstrates to employees that their wellbeing and safety at such events is important, and provides a warning to those who may be tempted to step out of line.

If you would like to discuss harassment or any issues relating to the content of this article, please contact Blair Wassman (blairwassman@bdbf.co.uk), or your usual BDBF contact.

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After an enforced hiatus, the in-person office Christmas party is returning this year and, for many, not even Omicron will stand in the way.  BDBF Associate, Theo Nicou, sets out his top tips to help employees make it a night to remember and not a night to forget.

Questionable behaviour at parties may not be new to employers, but they will certainly be out of practice after a long period of home-working and very few social events. It is not uncommon for misbehaviour at events to create an employee relations headache.

As an employee, it is important to remember that while Christmas parties are a social affair, they are still work events. Your conduct should reflect that. Your actions on the night can have lasting consequences.

Here are some top tips to make sure the night goes smoothly.

• Be mindful of your use of social media, including posting images of colleagues on public forums without their consent. What you may consider funny, others may consider embarrassing or offensive.

• When buying a “Secret Santa” gift for a colleague, think about how it might be received. It is best to avoid anything that could be considered offensive, especially if you don’t know the recipient very well.

• Consider watching your alcohol intake as excessive drinking can lower your inhibitions. Your professional reputation is important. Remember that your actions have consequences and impact your fellow colleagues too.

• Report any inappropriate, unwanted behaviour. This includes behaviour that you are subjected to or that you witness. You should review your employer’s policy about the appropriate process to follow.

Christmas parties are the perfect opportunity to catch up with colleagues, and maybe even meet new ones in person. This year is especially important given how physically distant we have been in recent times. And hybrid working leads to less face-to-face time with colleagues, meaning it is all the more important to make the most of these festive events. So, be sure to eat, drink (in moderation) and be merry!

For guidance on steps employers may wish to take in light of the Omicron variant, please read our briefing here.

If you would like to discuss any points raised in this article please contact Theo Nicou (theonicou@bdbf.co.uk), Amanda Steadman (amandasteadman@bdbf.co.uk) or your usual BDBF contact.

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A major new study commissioned by Standard Chartered Bank and the Financial Services Skills Commission examines the impact of the menopause on workers in the financial services sector, how it affects the leadership pipeline and how employers can better support staff.  Although the study focuses on the financial services sector, many of the findings are relevant to employers operating in other areas of the economy.

Why the menopause matters to the financial services sector

Around nine percent of the sector’s workforce is made up of women aged between 45 and 55, being the age bracket within which women are most likely to experience the menopause.  Earlier research has shown that a majority of women are negatively affected by the menopause at work, with the result that many choose not to progress in their careers or even leave the workplace altogether.

Given that the financial services sector is facing a skills gap and competition for talent, the report identifies that offering support to menopausal workers is one way to address this issue. 

Experiences of the menopause

The study shows that menopausal workers in the sector experienced a variety of physical and non-physical symptoms which negatively affect them at work.  The most commonly reported physical symptom was tiredness, followed by night sweats, muscle and joint pain, hot flushes, bloating, headaches, period changes, urinary problems, palpitations and dizziness.  The most commonly reported non-physical symptom was insomnia, followed by anxiety, memory problems, difficulty concentrating, mood swings, irritability, loss of confidence and depression.

The key message for employers is to understand and speak openly about these symptoms in order to ensure that appropriate support is made available.

Wellbeing and relationships in the workplace

The research revealed a “culture of silence” around the issue, which had a negative impact on workplace relationships.  Around half of menopausal workers said the menopause was not something that they felt could be discussed at work. 

Only around 20% of affected staff disclosed their status with a view to accessing support – interestingly, this figure was much lower for those in senior leadership roles (at around eight percent).  The primary reason holding workers back from disclosing their status was the belief that they would be perceived negatively, followed closely by a fear that their abilities would be questioned.  The report also revealed that women working in male-dominated and/or younger workplaces were particularly worried that managers and colleagues would not react well.   

In addition to this culture of silence, menopausal workers reported feeling less heard when they offered an idea or opinion.  Only 66% of menopausal women felt heard compared to 85% of younger men.  In focus groups and interviews, menopausal women also spoke of their inability to enjoy work in the way that they used to.  This was mainly driven by the worry that they would make a mistake, which led to a loss of confidence and a tendency to become withdrawn.

Retention of talent and the pipeline to senior roles

The study showed that workers experiencing difficult menopause symptoms at work are making the conscious choice not to progress into senior roles and, in some cases, are taking a step down in seniority or leaving the workplace altogether.

Around half of menopausal workers said they were less likely to apply for a promotion and a similar proportion said they were unwilling to take on extra responsibilities in their current role.  In focus groups, some reported not applying for a promotion (or rejecting an offer of a promotion) because they were worried that they would not be able to perform adequately in a more demanding role due to their symptoms.  More starkly, around a quarter of menopausal workers reported that the menopause made them more likely to leave employment altogether before retirement.

A common theme among those who did not apply for promotion, or who left the workforce, was that they did not know at the time that they were suffering from the menopause.  These workers reported that if they had better knowledge then they may have made a different decision.  This represents an opportunity for action by employers.

What can employers do to support menopausal workers?

The study concludes that employers should take action to support menopausal workers in three key areas.

Firstly, in relation to culture, training and awareness, the message is that menopause as a workplace issue is where mental health was ten years ago.  Just as with mental health, employers need to break the stigma surrounding the menopause.  It is recommended that employers:

• provide information and advice about the menopause and coping at work;
• train managers and HR on the menopause;
• publish a menopause policy or guidance document;
• facilitate support systems and networks;
• demonstrate senior leadership support; and
• cover the menopause in private health insurance and employee assistance programmes.

Secondly, the study recommends that employers communicate to staff that menopause is a good reason to wish to work flexibly and offer a range of flexible working options such as:

• working from home;
• staggered hours;
• flexibility to take short breaks;
• building in breaks between meetings; and
• allowing part-time working and job sharing.

Thirdly, the report highlights that simple changes to the working environment will help menopausal workers manage their symptoms.  Changes that would help to make the workplace more menopause-friendly include:

• providing a quiet room to relax (this is said to be especially helpful for those in client-facing roles);
• providing desk fans as a matter of course;
• giving workers a fixed desk;
• providing a good range of sanitary products in the toilets; and
• providing loose fitting / layered uniforms where relevant.

Employers operating both in and out of the financial services sector should take note of these findings and recommendations and consider what can be done to support and retain this overlooked part of the workforce. 

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

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In the recent case of Stott v Ralli Ltd the Employment Appeal Tribunal ruled that the dismissal of an employee was not an act of discrimination arising from disability.

What happened in this case?

The Claimant was employed as a paralegal by Ralli Ltd for approximately three months. She was dismissed for poor performance and was paid in lieu of notice. Following the dismissal meeting, the Claimant raised a grievance and stated that Ralli had been informed of her mental health issues in several communications. At the grievance meeting, she said that her disabilities were mental health issues, anxiety, depression and a heart condition. She claimed that her mental health issues had affected her performance.

Ralli rejected her grievance, stating that they had not been informed about her disabilities. Her appeal was also unsuccessful.   The Claimant went on to bring a claim in the Employment Tribunal for discrimination arising from disability in relation to her dismissal.  As she did not have two years’ service, she was not able to bring a claim for unfair dismissal. 

Ralli accepted that the Claimant had a mental impairment amounting to a disability at the time of her dismissal but argued that it had not known about this at the time and that it had only been raised after her dismissal.  In any event, it argued that any unfavourable treatment would have been justified.

The Employment Tribunal dismissed the claim, finding that the Claimant had been dismissed for poor performance and that the Claimant had not disclosed her impairment to Ralli prior to her dismissal.  The Claimant appealed on a number of grounds, notably that the Employment Tribunal should have regarded her grievance and the grievance appeal as an integral part of the dismissal process and should have concluded that, by the end of that process, Ralli had knowledge, or constructive knowledge, of her disability.

What was decided by the Employment Appeal Tribunal?

The EAT held that even on the most fair or generous reading the claim had been brought solely in relation to the dismissal.  Therefore, the Employment Tribunal had been correct to treat knowledge (or constructive knowledge) which had been acquired after the dismissal as irrelevant to the claim.

While in unfair dismissal claims dismissal is regarded as a process encompassing the appeal stage and outcome, the EAT held that there is no legal principle requiring the same approach to be taken in discrimination claims.   

What does this mean for employers?

Had the Claimant pleaded her claim more widely to include post-dismissal discrimination, relating to the grievance process and subsequent treatment (when the employer had knowledge of her disability) the outcome may have been different.  So, in reality, the employer got lucky.  In the ordinary course, if an employer has learned about dismissal during an appeal process, it may still be held liable for disability discrimination and so should act with due care when this happens.

Stott v Ralli Ltd

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What happened in this case?

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

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

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

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

What was decided?

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

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

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

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

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

What does this mean for employers?

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

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

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

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

Rooney v Leicester City Council

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

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

What happened in this case?

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

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

Manors refused the request, citing the following business reasons:

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

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

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

What was decided?

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

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

What does this mean for employers?

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

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

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

Thompson v Scancrown Ltd t/a Manors

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

What happened in this case?

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

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

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

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

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

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

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

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

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

What was decided?

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

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

What does this mean for employers?

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

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

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

Shipp v City Sprint UK Limited

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In July 2021, the Financial Conduct Authority (“FCA”), Prudential Regulation Authority (“PRA”) and the Bank of England (together the “Regulators”) published a collective discussion paper titled “Diversity and inclusion in the financial sector – working together to drive change” (the “Discussion Paper”). Through the Discussion Paper, the Regulators aim to accelerate the pace of meaningful change and open the discussion on diversity and inclusion in the financial services sector.

In the first of two articles on the topic, Melvyna Mumunie explains the aims of the Discussion Paper and outlines the policy proposals under consideration.

Purpose of the Discussion Paper

The Discussion Paper recognises the importance of promoting diversity and inclusion given the disproportionate impact that the coronavirus pandemic has had on certain groups. In addition, there is growing evidence of positive outcomes for businesses which are more diverse and inclusive, including: reducing groupthink, encouraging debate and innovation and improving outcomes for consumers and financial stability across markets. Academic research also suggests that a more balanced board improves performance on corporate and governance metrics, such as managerial decision making and risk management.

There are already numerous initiatives in place to improve and increase diversity. These includes the Women in Finance Charter (a commitment by HM Treasury and signatory firms to work together to build a more gender-balanced financial sector), the Social Mobility Employer Index and the Business Disability Forum. However, while trends are promising for gender inclusivity in leadership, figures remain low across the “diversity board”. Fewer than one in 10 management roles in financial services are held by black, Asian or other ethnic minority people. In respect of social mobility, a study of eight financial firms found that 89% of senior roles are held by people from higher socio-economic backgrounds. Evidence shows that the financial services sector has a long way to go, and this is made more challenging by poor collection of data on many aspects of diversity within the sector.

The Discussion Paper is an effort by the Regulators to engage financial firms and other stakeholders in a discussion on how the Regulators can accelerate the pace of meaningful change in the financial sector. It sets out the Regulators’ thinking on potential policy choices and clarifies their approach to diversity and inclusion in pursuit of their statutory objectives and duties. Responses are invited from all parts of the financial sector and parties with an interest in the issues.

The current position

The Regulators highlight that an impasse has been reached with regard to the implementation of diversity and inclusion strategies by financial services firms. This has led to:

• the continued existence of large gender and ethnicity pay gaps;
• parts of the industry lacking diversity at senior levels;
• products being offered to customers that do not always meet the needs of disadvantaged groups; and
• employees within firms and regulators lacking the vocabulary or skills to conduct open and constructive conversations about sensitive subjects.

Through the Discussion Paper and consultation, the Regulators seek to widen the general discussion on diversity and inclusion (which they acknowledge in most part has focused on gender) and bring less prevalent aspects of diversity to the table.

The Regulators also recognise that the interconnected nature of social categorisations such as race, class or gender as they apply to a given individual or group can create overlapping and interdependent systems of discrimination or disadvantage – this is often referred to as intersectionality and should be accounted for in the discussion.

Diversity of thought

The Regulators’ focus is on “diversity of thought” which they state can be influenced by a number of factors including: different perspectives, abilities, knowledge, attitudes, information styles, demographic characteristics or any combination of these. This can be measured by reference to visible characteristics such as gender, age and ethnicity and those which are non-visible, such as sexual orientation and disability.

The Regulators propose defining diversity of thought in the following way “Bringing together a range of different styles of thinking among members of a group. Factors that could lead to diverse thinking could include, but are not limited to, different perspectives, abilities, knowledge, attitudes, information styles and demographic characteristics or any combination of this”.

Interestingly, the Regulators do not limit these characteristics to those protected under the Equality Act 2010 (namely age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation).  Also included are factors such as socio-economic diversity and gender, including where they do not coincide with sex and cultural background.

The meaning of “inclusion”

The Regulators acknowledge that diversity in and of itself is not enough and that an inclusive culture is necessary to reap the benefits of diversity of thought. For the Regulators, inclusion means that everyone feels involved, valued, respected, treated fairly and that these elements are embedded into a firm’s culture. An inclusive firm is a firm in which all individuals are able to participate fully, speak freely without fear and where there is equal access to opportunities and resources for those who might otherwise be excluded or marginalised.

The proposed policy options

Whilst the Regulators already have diversity requirements in place for some regulated firms, most requirements are sector specific and result in a fragmented approach to diversity and inclusion. For example, Senior Managers in FCA-regulated firms are expected to take responsibility for developing and embedding healthy cultures in their areas of responsibility. In respect of reporting and disclosures, firms which are subject to the Corporate Governance Code are currently expected to publish some diversity information.

In seeking to embed a more consistent approach across the board, the Regulators wish to take a proportionate approach, and do not intend to be prescriptive or implement a one size fits all approach. However, the following are the policy options under consideration to drive diversity and inclusion within firms:

• tone from the top through board and senior leadership accountability policies and processes for driving diversity and inclusion;
• firm-wide policies and practices including publishing policies, setting diversity targets, diversity training and development of diverse talent;
• regulatory measures and powers in respect of whether adverse findings in relation to individuals’ conduct with respect to diversity and inclusion issues could affect assessments for fitness and propriety; and
• regular data collection and disclosures which would include data on board and executive committee membership and senior managers, diversity of the workforce and pay gaps.
•  

The Regulators’ multifaceted approach to diversity and inclusion in the financial sector is no mean feat. In an effort to depart from the traditional understanding of diversity and inclusion and embracing diversity of thought and intersectionality (a term which only came into being in 1989), the Discussion Paper is as much informative guidance on diversity and inclusion as it is a call to action. It is also an indication of the potentially wide-ranging changes faced by financial services firms. Comments on the Discussion Paper are due by 30 September 2021 with a consultation expected to launch in the early part of 2022. Firms likely to be affected by these changes are encouraged to consider the detail of the Discussion Paper and provide feedback.

With these changes will likely come several challenges. Not least regarding proportionality and guidance on what will amount to non-financial misconduct should the Regulators use their regulatory powers to assess non-financial misconduct and fitness and propriety with reference to diversity and inclusion. We will address these considerations in our next article on the Discussion Paper.

The Discussion Paper can be downloaded here – https://www.bankofengland.co.uk/prudential-regulation/publication/2021/july/diversity-and-inclusion-in-the-financial-sector

If you would like to know more, or you need advice on diversity and inclusion in the financial services sector please contact Melvyna Mumunie (melvynamumunie@bdbf.co.uk) or your usual BDBF contact.

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