Financial Services Regulators are Taking on Diversity and Inclusion

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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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Let’s Get Real About Menopause

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It has been some time coming but, finally, the legislators seem to be taking the issue of menopause and the impact it has on some women’s professional lives seriously.

The Women and Equalities Committee (WEC) has asked for submissions from the public to help them understand the extent of discrimination faced by menopausal workers and how Government policy and workplace practices can better support those experiencing menopause.

Research conducted in 2019 by the Chartered Institute of Personnel and Development (CIPD) laid bare the difficulties faced by menopausal women (usually aged between 45-55, although menopause can occur earlier or later) at work. The report highlighted that of those who experienced menopausal symptoms at work:

Nearly two-thirds (65%) said they had trouble concentrating.
More than half (58%) said they experienced more stress.
More than half (52%) said they struggled to be patient with clients and colleagues.
Only a quarter (25%) felt able to explain their symptoms and the reason for them to their manager.This was due to privacy concerns (45%), embarrassment (34%), and unsupportive management (32%).

This year, the CIPD, in partnership with Bupa, issued guidance for line managers on menopause at work. This contained a startling statistic – almost a million women have left the workforce due to menopause-related symptoms. Few would deny that this exit of talent is damaging to not only the women concerned, but the economy as a whole.

Children, elderly parents, and menopause – a difficult combination

Research shows that the more highly educated a woman is, the later she is likely to have children. In London, for example, the rate of women giving birth for the first time over the age of 40 now outstrips those becoming mothers in their teenage years. However, having children between the ages of 35 and 45 means that many women in professional sectors such as finance, engineering, law, and medicine hit perimenopause[1] just as their children are moving into the sometimes challenging teenage years and their ageing parents require more care. Unfortunately, to date, little research has been done on the impact of this ‘triple whammy’ on women’s careers.

New research on menopause and workers in the financial services sector

A study examining the effects of perimenopause and menopause on women’s economic participation in the financial services sector is being conducted by Standard Chartered Bank and Financial Services Skills Commission. The research is being carried out by the Fawcett Society, the UK’s leading charity campaigning for gender equality and women’s rights. The study aims to explore how perimenopause and menopause impacts women working in the financial sector and their ability to progress into senior roles, especially given that the opportunity to advance into those senior roles usually presents itself between the ages of 45-55 years.

The findings from the research will be published in Autumn 2021.

Supporting working women through the menopause transition

A 2016 paper[2] made the following recommendations to improve workplace conditions for peri- and postmenopausal workers:

Raise awareness amongst the workforce
Encourage disclosure of symptoms
Temperature control
Stress reduction
Flexible work arrangements
Access to water and toilets

These are relatively simple changes that employers can make to support women managing symptoms such as hot flashes, exhaustion, heavy periods, anxiety, depression, and difficulty concentrating.

The argument for making menopause a protected characteristic under the Equality Act 2010

One solution for safeguarding women dealing with perimenopause and menopause symptoms is to make menopause a protected characteristic under the Equality Act 2010. Currently, women bringing a claim for menopause-related discrimination must do so under one of the existing protected characteristics, typically sex, age, or disability. This limitation has resulted in Employment Tribunal decisions being mixed. Furthermore, lumping a natural condition that 50 per cent of the population experience underage, sex, or disability reinforces stereotypes of the older woman being less competent and able. Making menopause a protected characteristic in its own right moves the term away from illness, disability, ageing, and ‘female problems’, none of which have anything to do with the natural hormone shift that brings on menopause.

Caroline Nokes MP, Chair of the WEC inquiry has said she is open minded about recommending that equality laws be changed to protect menopausal women if evidence received during the inquiry supports such a proposal.

Final words

There are significant gaps in our knowledge of how menopause affects working women and the inquiries and study mentioned above will help address this issue. In turn, Government policies can be adjusted to fit the reality of the modern workplace. Menopause at work needs to become a mainstream issue for employers to ensure organisations can retain the experience and talent provided by those aged over 40.

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

[1] The transition period before menopause which can result in significant menopausal symptoms. Perimenopause can last a few months to a few years (sometimes up to a decade) before menopause officially occurs.

[2] GRIFFITHS. A., CEAUSU, I., DEPYPERE, H., LAMBRINOUDAKI. I., MUECK, A. PEREZ-LOPEZ, F.R., VAN DER SCHOUW, Y.T., SENTURK, L.M., SIMONCINI, T., STEVENSON, J.C., STUTE, P. and REES, M. (2016) EMAS recommendations for conditions in the workplace for menopausal women, Maturitas, Vol. 85, pp.79-81, ISSN 1873-411

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Dismissal of senior male employees following publication of high gender pay gap figures was sex discrimination

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An Employment Tribunal has recently decided that the dismissal of two senior male employees amounted to sex discrimination, where the dismissals had followed the announcement of the employer’s gender pay gap figures and a radical new approach to diversity within the business.

What does the law say?

The Equality Act 2010 protects workers from discrimination on the grounds of certain protected characteristics, such as sex, race and disability. Although it is typically workers from minority groups who assert their legal rights in this respect, the protections are available to all workers.

The gender pay gap reporting rules came into force in 2017, requiring employers with 250 or more employees to publish gender pay information on an annual basis from 4 April 2018. Analysis of reports published in 2018 and 2019 reveal that men tend to occupy the most senior and highly paid roles, indicating that the gender pay gap can be understood, primarily, as a gender representation gap. Although there is no legal obligation on employers to take steps to close their gender pay gap, many choose to do so in order to advance their reputation as an “employer of choice”.

What happened in this case?

Mr Bayfield and Mr Jenner (the Claimants) are both advertising professionals who had worked as a team for many years. Both are white British, heterosexual, middle aged men. They began working for J Walter Thompson (JWT) on 4 January 2016. Their work was highly regarded, and they were both promoted to the role of Creative Director in July 2017. Yet by the end of that year, cracks had begun to appear in the relationship. Their manager, Lucas Peon, expressed concerns that they were overly attached to “traditional” forms of media advertising and urged them to expand their digital output. Feedback obtained from colleagues echoed those concerns and highlighted that the pair lacked enthusiasm and could be indecisive.

In April 2018, JWT published its gender pay gap report for 2017, revealing a median gender pay gap of 44.7%, the highest figure across the advertising industry in that year. The report noted that “There is an acute problem of female representation in creative – a majority of senior jobs in that department are held by men, not just at [JWT] but also in our industry.”

The following month, Mr Peon and another of JWT’s Creative Directors, Jo Wallace, gave a presentation at the “Creative Equals Conference”. The presentation was intended to explain how JWT planned to address their gender pay gap figures. The presentation referred to the fact that JWT was recruiting new female talent, and that they had to “…do what it takes to ensure these women remain in the business and rise to the top”. More controversially, the presentation contained a slide with the following words scored out with a black line: “WHITE, BRITISH, PRIVILEGED, STRAIGHT, MEN CREATING TRADITIONAL ABOVE THE LINE ADVERTISING”. Ms Wallace went on to say that: “…the reputation JWT once earnt as being full of white, British, privileged, straight men creating traditional above the line advertising has to be obliterated.”

The Claimants raised concerns about the presentation, highlighting that there were a lot of “worried people” in the Creative Department. They were called to a meeting with Mr Peon and Ms Hoyle, JWT’s HR Director. The discussion at the meeting was tense, with Mr Peon and Ms Hoyle arguing that the intention was to obliterate JWT’s poor reputation, not obliterate staff who matched the description used in the presentation. Ms Hoyle later described the conversation as “horrible” and as the “lowest point” she experienced during her time working for JWT.

Around this time, JWT decided to commence a redundancy exercise within the Creative Department. In the evidence before the subsequent Employment Tribunal hearing, none of the company’s witnesses were able to recall the date of the meeting when this decision was taken (i.e. whether it was before or after the heated discussion). Witnesses also testified that no papers or notes were made regarding the proposals in order to stop the news getting out. This was in contrast to the approach taken in previous redundancy exercises. The Claimants (as well as three Senior Creatives who had also complained about the presentation at the Creative Equals Conference) were made redundant.

In 2019, JWT merged with Wunderman to form Wunderman Thompson (UK) Ltd. The Claimants brought claims against Wunderman Thompson (UK) Ltd in the Employment Tribunal for:

direct sex, age, sexual orientation and race discrimination;
harassment related to sex, age, sexual orientation and race;
victimisation;
automatic unfair dismissal and detriment for having blown the whistle; and
unfair dismissal.

What was decided?

The Tribunal upheld the claims of direct sex discrimination, harassment related to sex, victimisation and unfair dismissal and dismissed all of the other claims.

Direct sex discrimination and harassment related to sex

The Tribunal concluded that the treatment the Claimants experienced during the heated discussion with Mr Peon and Ms Hoyle, and the scores and comments they received during the redundancy process, were acts of direct sex discrimination during the course of employment. Alternatively, they were acts of harassment related to sex.

Further, sex was a significant reason for their dismissals. Two hypothetical female comparators would have been treated differently. A similar challenge raised by such women would not have been viewed as a threat to the company’s wish to change its reputation. Moreover, the company would have not been motivated to remove two female Creative Directors. By contrast, removing the Claimants would have an impact, both in terms of the gender pay gap figures and through opening up senior positions to female candidates. Alternatively, the dismissals were harassment related to sex.

Victimisation

The Tribunal held that the raising of concerns about the wording used in the presentation, and the comments made in the discussion that followed, were protected acts. The emails were sent in direct response to what they considered the presentation inevitably meant in practice (i.e. that JWT was preparing to dismiss creatives who were white, British, male, straight and middle class and who created traditional-style advertising). As such, the emails were directly referring to issues of unfair treatment based on the protected characteristics of sex, sexual orientation and race (there was no mention of age).

The Tribunal concluded that:

the treatment the Claimants experienced during the heated discussion;
the scores and comments the Claimants received during the redundancy process; and
the handling of a subsequent grievance process and grievance decision;

were all acts of victimisation during the course of employment.

Further, the decision to dismiss the Claimants was taken because they were seen to have “overstepped the mark”with the comments made in their emails and in the meeting that followed. This decision was made before any redundancy process had begun and the redundancy scoring exercise that followed was simply “retrofitted” to fit this decision. Therefore, the dismissals also amounted to unlawful victimisation.

Unfair dismissal

Finally, the Tribunal decided that the dismissals were ordinarily unfair. The real reason for the dismissals was that the Claimants had raised complaints and because they were seen as an impediment to the company’s agenda on gender diversity and the gender pay gap.

The redundancy dismissal process was also unfair. There was no consultation prior to the selection for redundancy and the redundancy scoring was a sham designed to ensure the predetermined decision to dismiss could be justified. There was also a failure to consider alternatives to redundancy, such as voluntary redundancies, and the appeal process was unreasonable and unfair.

Wunderman Thompson (UK) Ltd has said it intends to appeal the Tribunal’s decision.

What does this decision mean for employers?

Employers with large gender pay gaps will often wish to take steps to correct the underrepresentation of woman at senior level, thereby improving their gender pay gap figures. However, this case shows that employers also need to tread the line between being bold and being antagonistic. Public statements of the kind used by JWT clearly have the capacity to upset workers and provoke complaints. Employers need to hold in mind that this group of workers is protected from discriminatory treatment in the same way as minority groups possessing the same protected characteristics.

Manoeuvring staff out of the business to advance a diversity agenda opens up the risk of discrimination complaints. Given that employers are not yet compelled to take steps to close their gender pay gaps, this seems like an unnecessary risk to take, no matter how great the desire to be regarded as an employer of choice. Rather, a longer-term strategy, comprised of different measures, is preferable. The Government Equalities Office has published guidance on evidence-based actions for employers to close the gender pay gap and improve gender equality. The Equalities and Human Rights Commission has also published its own guidance on how to close the gender pay gap.

This case also highlights the need for managers to be trained on how to recognise protected acts and respond to complaints which sit contrary to a wider diversity agenda.

Bayfield and Jenner v Wunderman Thompson (UK) Ltd and others

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.

Two Parliamentary inquiries launched into menopause and the workplace

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Davina McCall’s recent high-profile documentary, Sex Myths and the Menopause, helped normalise conversations about the menopause in our living rooms. Since then, the movement to bring the menopause out into the open – including in the workplace – has gathered momentum, with two new Parliamentary inquiries launched in the last few weeks. In this briefing we explain what the inquiries are about and how you can submit your views.

Women and Equalities Committee – Inquiry into menopause and the workplace

On 23 July 2021, the House of Commons Women and Equalities Committee opened an inquiry into the impact of the menopause in the workplace. Essentially, the purpose of the inquiry is to receive evidence on current workplace practices and views on whether existing discrimination legislation 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 if it is connected to one of the existing protected characteristics such as age, sex and disability. The Chair of the Committee, Caroline Nokes MP, has not ruled out the possibility of recommending that the law be changed to make menopause a standalone protected characteristic. The inquiry will also look at whether employers should be compelled to put in place workplace menopause policies.

The specific questions raised in the inquiry are as follows:

What is the nature and the extent of discrimination faced by women experiencing the menopause? How does this impact wider society?
What is the economic impact of menopause discrimination?
How can businesses factor in the needs of employees going through the menopause?
How can practices addressing workplace discrimination relating to menopause be implemented? For example, through guidance, advice, adjustments, or enforcement. What are examples of best or most inclusive practices?
How should people who experience the menopause but do not identify as women be supported in relation to menopause and the workplace?
How well does current legislation protect women from discrimination in the workplace associated with the menopause? Should current legislation be amended?
What further legislation is required to enable employers to put in place a workplace menopause policy to protect people going through the menopause whilst at work?
How effective has Government action been at addressing workplace discrimination related to the menopause, and what more can the Government do to address this issue?
How effectively is the Government Equalities Office working across Government to embed a strategic approach to addressing the impact of menopause in the workplace?

The inquiry closes on 17 September 2021. The Committee will present their findings and recommendations to the Government, with a view to shaping policies addressing gender equality and women’s health.

You can contribute to the inquiry directly via this link. Alternatively, Amanda Steadman, Principal Knowledge Lawyer at BDBF, is a member of the Employment Lawyers Association Working Party responding to this inquiry. If you prefer, you can feedback your views to her by 2 September 2021.

Women and Equalities Committee – Menopause and the Workplace Inquiry

All-Party Parliamentary Group on Menopause – Inquiry into the impacts of the menopause and the case for reform

The All-Party Parliamentary Group on Menopause (Menopause APPG) is a politically neutral cross-party group of Parliamentarians concerned about the menopause and is chaired by Carolyn Harris MP. The Menopause APPG has regular meetings within Parliament to discuss the challenges and impact of menopause, as well as listening to the thoughts of anybody with experience and interest on the issue.

On 6 July 2021, the Menopause APPG opened an inquiry into the impacts of menopause on women and families and the case for policy reform. This inquiry will examine a wide range of issues surrounding menopause and seeks written submissions on the following issues:

Evidence on current workplace attitudes, policy or initiatives towards menopause and detail on further workplace action that should be taken.
Information on current menopause education in schools – how it works in practice and what more could be done to educate people on menopause.
Information on how medical professionals and the NHS deal with menopause in terms of treatment and the development of treatment. What specific policy change would better help the NHS treat women going through menopause?
Detail on personal experiences of menopause, the impact this may have had on daily activity and wider family impacts.
Information on current products that are available for women going through menopause and information on this market.
Any further detail or suggested policy recommendations that the Menopause APPG should consider around menopause.

As part of its inquiry, the Menopause APPG will also be undertaking a number of live evidence sessions. On 23 September 2021, the group will hold a session to hear evidence on menopause and the workplace, looking specifically at what employers can do and what legislative changes are required.

The inquiry closes on 30 September 2021. The evidence collected will contribute to the Menopause APPG’s final recommendations for policy change which will be presented to the Government.

You can contribute to the inquiry directly by emailing: sarina.kiayani@interelgroup.com.

Menopause APPG – Inquiry into the impacts of the menopause and the case for reform

If you would like to know more about the menopause and the workplace, and the steps employers can take to help workers, you can read our briefing from March 2021 which looked at these issues.

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.

Claire Dawson speaks to Anita Rani on BBC Woman’s Hour

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Claire Dawson, Employment Lawyer and Partner at BDBF spoke to Anita Rani on BBC Womans Hour about pregnancy discrimination and maternity rights in light of Dr Katie Lidster’s case.

Clcik here to listen: https://bbc.in/3xIcobK

[/et_pb_text][/et_pb_column][et_pb_column type=”1_2″ _builder_version=”3.25″ custom_padding=”|||” custom_padding__hover=”|||”][et_pb_image src=”http://davidk423.sg-host.com/wp-content/uploads/2021/08/Claire-Dawson-Blog.jpg” title_text=”Claire-Dawson-Blog” _builder_version=”4.7.4″ _module_preset=”default” hover_enabled=”0″ sticky_enabled=”0″][/et_pb_image][/et_pb_column][/et_pb_row][/et_pb_section][et_pb_section fb_built=”1″ _builder_version=”3.26.6″][et_pb_row _builder_version=”3.26.6″][et_pb_column type=”4_4″ _builder_version=”3.26.6″][/et_pb_column][/et_pb_row][/et_pb_section]

Imposition of Saturday working requirement on a single mother was sex discrimination

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In Keating v WH Smith Retail Holdings Ltd an Employment Tribunal ruled that a female employee was indirectly discriminated against on the grounds of sex when her employer sought to impose Saturday working on her. It also said that she had been constructively unfairly dismissed.

What does the law say?

Indirect discrimination occurs where:

The employer applies a provision, criterion or practice (the PCP) to a worker who has a protected characteristic for the purposes of the Equality Act 2010 and applies the same PCP to workers who do not share that protected characteristic.
The PCP puts (or would put) people with whom the worker shares the protected characteristic at a particular disadvantage compared to those who do not share it (the group disadvantage).
The PCP puts (or would put) the worker to that particular disadvantage (the individual disadvantage).
The employer cannot show the PCP to be a proportionate means of achieving a legitimate aim (objective justification).

Many employment cases have recognised that women are more likely than men to bear the bulk of childcare responsibilities and that this may disadvantage them as a group.

What happened in this case?

Ms Keating was employed as a retail assistant by WH Smith. She was contracted to work flexibly for 20 hours per week (with a further eight hours per week when more staff were required). Her contract also stated that she may be required to work Saturdays, Sundays and/or public and Bank Holidays. She was a single parent with one dependent child aged eight and her childcare responsibilities meant, in practice, she only worked on weekdays.

In the early summer of 2018, her manager, Mr Cruickshanks, identified a business need to introduce a Saturday rota for the weekday staff. This was due to falling sales revenue in the store and budget constraints that followed from this. There was an anticipated departure of University students who worked weekends and Mr Cruickshank wanted to fill those shifts with the weekday staff. The proposal was for the weekday staff to work one in every four Saturdays.

Numerous meetings followed between Ms Keating and Mr Cruickshanks, where she highlighted her concerns about childcare. Ms Keating heard no more about the proposed Saturday working until September 2018 when she was rostered to work Saturdays. She reiterated her concerns and Mr Cruickshanks told her she would need to arrange shift swaps with her colleagues.

Ms Keating worked the first rostered Saturday but had to bring her daughter to work with her due to lack of childcare. Once again, she explained to Mr Cruickshanks that she had no one to look after her daughter on Saturdays. No satisfactory response was given. Ms Keating resigned on 22 October 2018 and claimed indirect discrimination on the grounds of sex and constructive unfair dismissal.

What was decided?

The Employment Tribunal upheld both claims.

Indirect sex discrimination

The Tribunal concluded that the PCP of requiring weekday staff to work one in four Saturdays put women at a particular group disadvantage when compared with men because, statistically, women are still the primary carers of dependent children and more women than men are single child carers.

The Tribunal used its collective experience and judicial discretion to assess the impact of the PCP to women at large as WH Smith did not clearly identify the pool of staff in the store (i.e. how many were men and how many were women, how many had childcare responsibilities of dependent children and how many had partners). The Tribunal concluded that Ms Keating was put at a disadvantage: she was a woman, a single mother who could not afford childcare and had no network she could call on.

The Tribunal also accepted WH Smith had the legitimate aim of needing to manage costs and the desire to share Saturday working fairly amongst the team. However, the aim was not proportionate. Mr Cruickshanks had not considered less discriminatory alternatives. For example, he had not asked any other employee whether they could work the Saturday shifts for Ms Keating and/or considered recruiting one dedicated member of staff to work Saturday shifts.

Constructive unfair dismissal

The Tribunal concluded that WH Smith failed to have any regard to Ms Keating’s childcare issues, despite there being several opportunities to address it. This conduct was likely to destroy or seriously damage the relationship of trust and confidence. In particular, the Tribunal noted that the express flexibility provisions in Ms Keating’s contract were fettered by the implied term of trust and confidence. Ms Keating had resigned in response to WH Smith’s reliance on this clause and she had done so promptly.

What does this decision mean for employers?

This case, and the recent decision in Dobson v North Cumbria Integrated Care NHS Foundation Trust, show that Tribunals are willing to accept as a fact that women bear the primary responsibility for childcare and this may limit their ability to work certain hours or working patterns. Any rigid requirement to work weekends, nights or unpredictable hours may well mean that group disadvantage will follow.

Employers should avoid imposing rigid and onerous working patterns on women with childcare responsibilities, especially single mothers without a support network as was the case here. Try to be as flexible as possible and open a dialogue with the employee to identify a pattern that works for both parties. Ignoring an employee’s repeated concerns is a dangerous strategy. Even if no compromise is possible, the efforts made here will help employers demonstrate that they have acted proportionately and also not breached the duty of trust and confidence.

Keating v WH Smith Retail Holdings Ltd

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

Gender critical beliefs are protected under the Equality Act 2010 and the European Convention of Human Rights

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In Forstater v CGD Europe and others the EAT held that gender critical beliefs, including beliefs that biological sex cannot be changed and is different to gender identity, are protected beliefs under the Equality Act 2010 and the European Convention of Human Rights.

What does the law say?

Workers are protected from discrimination in employment on the grounds of 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 satisfy five criteria. Namely, the belief must:

be genuinely held;
be more than a mere opinion or viewpoint;
concern a weighty and substantial aspect of human life and behaviour;
have a certain level of cogency, seriousness, cohesion and importance; and
be worthy of respect in a democratic society and not be incompatible with human dignity or conflict with the fundamental rights of others.

In the last few years, Tribunals have had to grapple with the question of whether gender critical beliefs meet this standard.

In October 2019, in the case of Mackereth v Department for Work and Pensions and anor, an Employment Tribunal held that a Christian doctor’s beliefs that God created males and females and that people cannot choose their gender or change their sex were not protected beliefs as they were incompatible with human dignity and conflicted with the fundamental rights of others. Dr Mackereth’s appeal of this decision is due to be heard in October 2021.

A few months later, in December 2019, at a Preliminary Hearing in the case of Forstater v CGD Europe and ors, an Employment Tribunal held that Ms Forstater’s beliefs that being male or female is a biological fact (as opposed to a feeling or identity) and that people cannot change their sex were not protected beliefs as they were not worthy of respect in a democratic society and were incompatible with human dignity and conflicted with the fundamental rights of others. Ms Forstater appealed this decision and her appeal was heard in April 2021.

By contrast, in October 2020, in the case of Higgs v Farmor’s School, an Employment Tribunal held that Ms Higgs’ beliefs that people cannot choose their gender or change their sex were worthy of respect in a democratic society and were protected beliefs. However, the Tribunal also found that Ms Higgs had not been disciplined and dismissed because of those beliefs, but because of inflammatory language she had used in Facebook posts which could have led readers to believe she was homophobic and/or transphobic. Ms Higgs is seeking permission to appeal this decision.

Also relevant is the Tribunal’s decision in September 2020 in the case of Taylor v Jaguar Land Rover Ltd, where it was decided that a worker who was transitioning from male to female, and who self-identified as non-binary and gender fluid, was protected from discrimination on the grounds of gender reassignment despite not undertaking a surgical transition.

This briefing considers the Employment Appeal Tribunal’s (EAT) decision in Ms Forstater’s appeal. This is important because it is the first appellate (and, therefore, binding) decision on the matter.

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, and the decision was taken not to renew Ms Forstater’s visiting fellowship and to end her consultancy work.

Ms Forstater claimed that she had suffered direct discrimination and harassment because of her philosophical beliefs. At a Preliminary Hearing, the Employment Tribunal held that Ms Forstater’s beliefs satisfied the first four criteria needed to acquire protection from discrimination (see above). However, they decided the beliefs were not worthy of protection in a democratic society because they were absolutist and meant that she would refer to a person by the sex that she viewed as appropriate, even if this meant violating their dignity or creating an intimidating, hostile, degrading or offensive environment for them. Although it was true that Ms Forstater had a right to freedom of expression (arising under the European Convention of Human Rights (ECHR)), this was not an absolute right and could be infringed where the beliefs being expressed violated the rights of others, as was the case here.

Ms Forstater appealed to the EAT.

What was decided?

The EAT allowed the appeal, holding that Ms Forstater’s beliefs were protected philosophical beliefs under the Equality Act 2010.

The EAT said the Tribunal had erred in its application of the fifth criterion needed to acquire protection from discrimination, namely that it be worthy of respect in a democratic society and not be incompatible with human dignity or conflict with the fundamental rights of others. Only the most extreme beliefs the expression of which would be akin to Nazism or totalitarianism or which incited hatred or violence would be excluded for failing to satisfy that criterion.

Ms Forstater’s gender critical beliefs did not seek to destroy the rights of trans persons and did not fall into that category. Although her beliefs may be offensive to some and could even result in the harassment of trans persons in certain circumstances, they were protected under the right to freedom of thought, conscience and religion under the ECHR and as philosophical beliefs under the Equality Act 2010.

The EAT acknowledged that some trans people would be disappointed by the judgment and it took the opportunity to correct any misconceptions about the decision. The EAT stressed that:

the EAT had not expressed any view on the merits of either side of the transgender debate and nothing in it should be regarded as so doing;
it does not follow that those holding gender-critical beliefs are free to misgender trans people with impunity. Whether or not such conduct would amount to harassment or discrimination will be for a Tribunal to determine in a given case;
trans people are protected from discrimination and harassment. The protected characteristic of gender reassignment may apply to a proportion of trans people, but there are also other protected characteristics that could potentially be relied upon in the face of such conduct; and
employers are capable of providing a safe environment for trans people. Employers continue to be vicariously liable for acts of harassment and discrimination against trans people committed in the course of employment (save where reasonable steps have been taken to prevent such actions).

The case has been sent back to the Employment Tribunal to decide whether Ms Forstater was, in fact, discriminated against and/or harassed because of her gender-critical beliefs.

What does this decision mean for employers?

Employers must now be ready to navigate this clash of rights.

On the one hand, gender critical beliefs are protected beliefs and workers should not be discriminated against or harassed for holding such beliefs (for example, by being gossiped about, shunned or labelled as a “transphobe” or “bigot”).

On the other hand, trans workers are also protected from discrimination and harassment on the grounds of gender reassignment (for example, by misgendering them) and potentially other grounds. Further, other workers who are not trans themselves may find the expression of gender critical views to be offensive and also complain of harassment.

In either case, employers can be vicariously liable for acts of discrimination or harassment committed by its workers. What practical steps can employers take to manage this risk?

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. 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. As a recent case showed, a failure to do this may mean you cannot rely on the defence that you have taken all reasonable steps to prevent discrimination.
Respond quickly and effectively to complaints of discrimination or harassment.
Continue to monitor this fast-moving area of law, in particular, the appeals in the Mackereth and Higgs cases and also the forthcoming Tribunal decision in the Forstater case itself.

Forstater v CGD Europe and others

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.

Dismissal of a working mother for refusal to work occasional weekends may have been indirectly discriminatory and unfair

[et_pb_section fb_built=”1″ _builder_version=”3.0.100″ background_image=”http://davidk423.sg-host.com/wp-content/uploads/2017/09/bdbf_final-stages-1-4-1.jpg” custom_padding=”|||” global_module=”2165″ saved_tabs=”all”][et_pb_row _builder_version=”4.7.4″ min_height=”66.4px” custom_padding=”50px||||false|false”][et_pb_column type=”4_4″ _builder_version=”3.25″ custom_padding=”|||” custom_padding__hover=”|||”][et_pb_text _builder_version=”4.7.4″ _dynamic_attributes=”content” text_font=”|700|||||||” text_font_size=”27px” background_layout=”dark” custom_margin=”0px|||” custom_padding=”0px|||”]@ET-DC@eyJkeW5hbWljIjp0cnVlLCJjb250ZW50IjoicG9zdF90aXRsZSIsInNldHRpbmdzIjp7ImJlZm9yZSI6IiIsImFmdGVyIjoiIn19@[/et_pb_text][et_pb_text _builder_version=”4.7.4″ _dynamic_attributes=”content” _module_preset=”default” background_layout=”dark”]@ET-DC@eyJkeW5hbWljIjp0cnVlLCJjb250ZW50IjoicG9zdF9kYXRlIiwic2V0dGluZ3MiOnsiYmVmb3JlIjoiIiwiYWZ0ZXIiOiIiLCJkYXRlX2Zvcm1hdCI6ImRlZmF1bHQiLCJjdXN0b21fZGF0ZV9mb3JtYXQiOiIifX0=@[/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section][et_pb_section fb_built=”1″ admin_label=”section” _builder_version=”3.22.3″][et_pb_row admin_label=”row” _builder_version=”4.7.4″ background_size=”initial” background_position=”top_left” background_repeat=”repeat”][et_pb_column type=”4_4″ _builder_version=”3.25″ custom_padding=”|||” custom_padding__hover=”|||”][et_pb_text _builder_version=”4.7.4″ text_orientation=”justified” hover_enabled=”0″ use_border_color=”off” sticky_enabled=”0″]In Dobson v North Cumbria Integrated Care NHS Foundation Trust the EAT ruled that Employment Tribunals must accept as fact that women still bear the primary burden of childcare responsibilities and this hinders their ability to work certain hours. This approach may help working mothers show that onerous working patterns are indirectly discriminatory on the grounds of sex.

What does the law say?

In the employment context, indirect discrimination occurs where:

The employer applies a provision, criterion or practice (the PCP) to a worker who has a protected characteristic for the purposes of the Equality Act 2010 and applies the same PCP to workers who do not share that protected characteristic.
The PCP puts (or would put) people with whom the worker shares the protected characteristic at a particular disadvantage compared to those who do not share it (the group disadvantage).
The PCP puts (or would put) the worker to that particular disadvantage (the individual disadvantage).
The employer cannot show the PCP to be a proportionate means of achieving a legitimate aim (objective justification).

Many employment cases have recognised that women are more likely than men to bear the bulk of childcare responsibilities and that this may disadvantage them as a group.

What happened in this case?

Ms Dobson was employed as a community nurse by an NHS Trust, working in a team made up of nine women and one man. She had three children, two of whom are disabled. Her childcare responsibilities meant that she only worked on Wednesdays and Thursdays each week. In September 2016, the Trust asked its community nurses to work flexibly, including occasional weekends (but not more than once a month). Ms Dobson refused due to her childcare commitments and was dismissed in July 2017.

Ms Dobson claimed that that her dismissal was unfair and indirectly discriminatory on the grounds of sex. (She also brought a claim for victimisation which is not discussed in this briefing). The Employment Tribunal dismissed the unfair dismissal claim holding that the Trust had explored reasonable alternatives with Ms Dobson, which she had rejected. Ultimately, the increasing demands on the Trust’s service meant that it was reasonable for it to conclude that there was no other option but to dismiss.

In relation to the indirect sex discrimination claim, the Tribunal concluded that the claim failed because there was no evidence that the requirement for community nurses to work flexibly including at weekends caused particular disadvantage for women compared to men. Everyone else in Ms Dobson’s team, including the eight other women, was able to comply with the PCP.

Although the Tribunal had sympathy with Ms Dobson’s particular situation, it said the fact that she is a parent of disabled children is not a protected characteristic that she could rely on in an indirect discrimination claim. In any event, the Tribunal concluded that if it were wrong about the lack of group disadvantage, the Trust would have been able to justify the new week-end working requirement , meaning the claim would still fail.

Ms Dobson appealed to the Employment Appeal Tribunal (EAT).

What was decided?

Ms Dobson’s appeal was allowed, and the case has been remitted to the Employment Tribunal. We discuss the key grounds of appeal and the EAT’s decision on each one below.

Indirect sex discrimination

(i) Wrong pool used for determining group disadvantage

The first key ground of appeal was that the Tribunal had gone wrong by only considering group disadvantage in the context of Ms Dobson’s small team, rather than for all community nurses working across the Trust.

The EAT agreed. Since the new rule applied to all community nurses, the logical pool for determining group disadvantage was all the community nurses working for the Trust. It was wrong to look only at Ms Dobson’s team. This produced a potentially unrepresentative pool in terms of childcare responsibilities.

(ii) Failure to take judicial notice of the “childcare disparity”

The second key ground of appeal was that the Tribunal had erred in requiring Ms Dobson to produce evidence of group disadvantage. Instead, this was a case where the Tribunal ought to have taken “judicial notice” of the fact that women are more likely than men to bear the bulk of childcare responsibilities and that this may limit their ability to work certain hours. “Judicial notice” means to accept something as fact without it needing to be proved.

This fact has already been recognised in many other employment cases, including by the Court of Appeal in London Underground v Edwards (No.2) and the Supreme Court in Essop v Home Office (UK Border Agency). Requiring evidence on each occasion would make the bringing of such claims more difficult than it already is.

The EAT accepted that authorities have established that women bear the greater burden of childcare responsibilities than men and this limits their ability to work certain hours. It also accepted that judicial notice of this “childcare disparity” had been taken without further enquiry on several occasions. As such, it was a matter that Tribunals must take into account if relevant. However, the EAT accepted that this does not mean the matter is set in stone. Of course, things can change over time. However, this was not the case as far as the childcare disparity is concerned. The EAT said: “Whilst things might have progressed somewhat in that men do now bear a greater proportion of child caring responsibilities than they did decades ago, the position is still far from equal.”

The EAT concluded that the Tribunal had erred in not taking judicial notice of the childcare disparity and in treating Ms Dobson’s case as unsupported by evidence.

(iii) Objective justification

The EAT agreed that the Tribunal’s finding on objective justification was unsafe given the error made in relation to the pool and group disadvantage. Objective justification would, therefore, have to be revisited (however, it is still possible that the Trust may be able to justify the discrimination).

Unfair dismissal

The reason for dismissal was Ms Dobson’s inability to comply with the requirement for community nurses to work flexibly, including at weekends. This was inextricably linked to the revised working arrangements giving rise to the alleged indirect discrimination.

Having found that the Tribunal had erred on the indirect discrimination claim, the EAT agreed that a different outcome in that claim might mean that a different conclusion should be reached in the unfair dismissal claim. In other words, if it is decided that the new working arrangements were indirectly discriminatory, then dismissal for failing to comply with that requirement might be outside the band of reasonable responses and unfair.

What does this decision mean for employers?

The fact that Tribunals must take judicial notice of the childcare disparity (for as long as it persists) helps women bringing indirect sex discrimination claims connected to working patterns. But it’s worth remembering that this does not inevitably mean that group disadvantage will be present – it will always depend on the particular rule or practice in issue. A rigid requirement to work weekends, nights or unpredictable hours will usually mean that group disadvantage will follow. But a less onerous provision (e.g. working any period of 8 hours across a fixed window of time) might not necessarily disadvantage those with childcare responsibilities and, in fact, might even favour them.

Employers should also note that in cases like this, “disadvantage” does not have to mean that compliance is impossible. Women can still be disadvantaged by a PCP relating to working patterns, where they could comply, but this would cause them difficulties and/or force them to make arrangements for someone else to take responsibility for childcare (including their husband or partner).

The key take-away for employers is to avoid imposing rigid and onerous working patterns on women with childcare responsibilities. Try to be as flexible as possible and open a dialogue with the employee to identify a pattern that works for both parties. Even if this proves to be impossible, the efforts made here will help employers demonstrate that they have acted proportionately and will help to justify the chosen pattern.

Dobson v North Cumbria Integrated Care NHS Foundation Trust

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.[/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section][et_pb_section fb_built=”1″ _builder_version=”3.26.6″][et_pb_row _builder_version=”3.26.6″][et_pb_column type=”4_4″ _builder_version=”3.26.6″][/et_pb_column][/et_pb_row][/et_pb_section]

When can you be fixed with constructive knowledge of an undeclared disability?

[et_pb_section fb_built=”1″ _builder_version=”3.0.100″ background_image=”http://davidk423.sg-host.com/wp-content/uploads/2017/09/bdbf_final-stages-1-4-1.jpg” custom_padding=”|||” global_module=”2165″ saved_tabs=”all”][et_pb_row _builder_version=”4.7.4″ min_height=”66.4px” custom_padding=”50px||||false|false”][et_pb_column type=”4_4″ _builder_version=”3.25″ custom_padding=”|||” custom_padding__hover=”|||”][et_pb_text _builder_version=”4.7.4″ _dynamic_attributes=”content” text_font=”|700|||||||” text_font_size=”27px” background_layout=”dark” custom_margin=”0px|||” custom_padding=”0px|||”]@ET-DC@eyJkeW5hbWljIjp0cnVlLCJjb250ZW50IjoicG9zdF90aXRsZSIsInNldHRpbmdzIjp7ImJlZm9yZSI6IiIsImFmdGVyIjoiIn19@[/et_pb_text][et_pb_text _builder_version=”4.7.4″ _dynamic_attributes=”content” _module_preset=”default” background_layout=”dark”]@ET-DC@eyJkeW5hbWljIjp0cnVlLCJjb250ZW50IjoicG9zdF9kYXRlIiwic2V0dGluZ3MiOnsiYmVmb3JlIjoiIiwiYWZ0ZXIiOiIiLCJkYXRlX2Zvcm1hdCI6ImRlZmF1bHQiLCJjdXN0b21fZGF0ZV9mb3JtYXQiOiIifX0=@[/et_pb_text][/et_pb_column][/et_pb_row][/et_pb_section][et_pb_section fb_built=”1″ admin_label=”section” _builder_version=”3.22.3″][et_pb_row column_structure=”3_5,2_5″ admin_label=”row” _builder_version=”3.25″ background_size=”initial” background_position=”top_left” background_repeat=”repeat”][et_pb_column type=”3_5″ _builder_version=”3.25″ custom_padding=”|||” custom_padding__hover=”|||”][et_pb_text _builder_version=”4.7.4″ text_orientation=”justified” use_border_color=”off”]

When can you be fixed with constructive knowledge of an undeclared disability?

Gareth Brahams speaks at the White Paper Conference answering the question: when can you be fixed with constructive knowledge of an undeclared disability? You can watch a clip of Gareth answering this question at https://whitepaper.co.uk/conferences/hrlaw21. The conference is available on demand from today.

If you would like to discuss managing disability in the workplace or a similar situation, please contact Gareth Brahams (GarethBrahams@bdbf.co.uk) or your usual BDBF contact.

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Image courtesy of https://whitepaper.co.uk

Is it discriminatory to pay a man on shared parental leave less than a woman on adoption leave?

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Is it discriminatory to pay a man on shared parental leave less than a woman on adoption leave?

In Price v Powys County Council, the Employment Appeal Tribunal (EAT) has determined that it was not directly discriminatory to enhance pay to a female employee on adoption leave and not to enhance statutory pay for a male employee on shared parental leave.

What does the law say?

Direct sex discrimination occurs where someone treats person A less favourably than person B, because of person A’s sex. If employees wish to claim direct sex discrimination, they must demonstrate that they have been treated less favourably than a real or hypothetical comparator. For these purposes, a comparator must be someone of the opposite sex whose circumstances are not materially different to the complainant. A material difference is one that is significant and relevant.

Where employees adopt a child, they may be entitled to take adoption leave and receive statutory adoption pay. Primary adopters will be entitled to take up to 52 weeks’ leave, which may begin before or after the adoption placement. They may also qualify for up to 39 weeks’ statutory adoption pay. The primary adopter’s partner or spouse may qualify for up to 2 weeks’ paternity leave and pay.

Birth and adoptive parents may be entitled to take shared parental leave and receive statutory shared parental pay. This will only be available where the birth mother/primary adopter has curtailed the maternity/adoption leave and pay. Up to 50 weeks’ shared parental leave and 37 weeks’ statutory shared parental pay may be shared between the parents in blocks of their choosing (subject to certain limits). Shared parental leave may only be taken after the birth or adoption placement has begun.

What happened in this case?

Mr Price worked for Powys County Council. He applied to take shared parental leave following the birth of his first child. When he asked how much he would be paid during leave, the Council confirmed that he would receive statutory shared parental pay only. By contrast, the Council enhanced both maternity and adoption pay. Because of this, Mr Price decided that he would not take shared parental leave after all.

He went on to claim direct sex discrimination, arguing that he should receive the same pay as female colleagues taking other forms of leave. He identified two comparators:

a woman on maternity leave receiving enhanced pay; and
a woman on adoption leave receiving enhanced pay.

He argued that he was entitled to compare himself to these women because all forms of leave served the same purpose, namely the facilitation of childcare.

What was decided?

In Ali v Capita Customer Management Ltd the Court of Appeal ruled that a man taking shared parental leave was not entitled to compare himself to a woman on maternity leave as their circumstances were materially different. The Court said that the primary purpose of maternity leave was for the health and safety of the birth mother and not the facilitation of childcare. Accordingly, the EAT held that Mr Price could not compare himself to a woman on maternity leave.

In relation to the second comparator (the woman on adoption leave), the EAT decided that adoption leave and shared parental leave were similar in that they both had the underlying purpose of facilitating childcare. However, there were also fundamental differences. The predominant purpose of adoption leave was to allow adoptive parents to prepare a safe environment for the child and secure the parental bond. As a result, Mr Price and the female comparator’s circumstances were materially different. For that reason, a person taking shared parental leave was not in a directly comparable position with a person of the opposite sex taking adoption leave. Here, the right comparator would have been a woman taking shared parental leave, who would also have been paid statutory shared parental pay only.

What does this mean for employers?

This decision is helpful to employers who enhance pay for adoption leave but not shared parental leave. That difference in approach will not be directly discriminatory. However, employers should note that it remains possible that such a claim might succeed if framed as an equal pay claim. In the case of Hextall v Chief Constable of Leicestershire Police, the Court of Appeal held that a man being paid statutory shared parental pay only could have compared himself to a woman being paid enhanced maternity pay for the purposes of an equal pay claim. However, in that case, the Court said the equal pay claim was bound to fail because claims are excluded where more favourable terms relate to special treatment for women in connection with pregnancy or childbirth. However, that exclusion would not apply where a man sought to compare himself to a woman taking adoption leave.

This case also highlights the wider issue that many parents remain reluctant to take shared parental leave because employers tend not to offer enhanced pay. The charity, Maternity Action, estimates that the take up rate stands at between 3% to 4% among eligible couples. Indeed, in the last few days, a group of organisations including the TUC, the National Childbirth Trust and the Royal College of Midwives have described the shared parental leave system as a “deeply flawed and chronically failing policy”. They have called for it to be scrapped and replaced with a period of nom-transferable paid leave for both mothers and fathers.

Price v Powys County Council

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

MS Awareness Week 2021

Employment Law News

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MS Awareness Week

This week is MS Awareness Week, a campaign which seeks to raise awareness of Multiple Sclerosis (MS) and encourage those affected by it to speak openly about how it impacts them. In this article, BDBF Associate, Theo Nicou, considers what employers can do to help break the silence and support staff with the condition.

What is MS and what are the symptoms?

MS is a progressive condition that affects more than 130,000 people in the UK, and almost three times as many women as men.

In MS, the coating that protects nerves is damaged and this affects the brain and spinal cord. This causes a range of symptoms including blurred vision and problems with balance, memory, thinking and emotions.

What legal obligations do employers have to staff with MS?

MS is a deemed disability in the Equality Act 2010. This means that people with MS are automatically protected from unlawful discrimination. This applies from the moment that they are diagnosed, irrespective of how their MS affects them.

Employers have various legal duties to employees with MS including:

to implement any reasonable adjustments their employee needs in order to do their job;
not to discriminate against or harass their employee or allow their employee to be harassed or discriminated against by other members of staff; and
to observe their duties about the management of sensitive personal data.

What can employers do to support employees with MS?

The MS Society makes the following recommendations for employers:

Consider which reasonable adjustments can be put in place

Reasonable adjustments can vary in the form they take, from providing a chair to agreeing flexible or reduced working hours or working from home. What is considered ‘reasonable’ will depend on the employer and the job the employee carries out. It may be advisable for employers to arrange for their employees to undertake an occupational health assessment to identify any reasonable adjustments that would help alleviate any disadvantage they suffer. Reasonable adjustments should be reviewed on a regular basis to ensure they are effective.

Establish an ongoing dialogue

Talking about MS is essential to enable employees and employers to express their concerns and determine what the employee needs and how the employer can help. It is important to note that MS affects people differently and so employers should avoid making assumptions about what the employee can and cannot do. They should ensure any support provided is tailored to the employee in question.

Time off from work

Employers can support employees by recording time off related to MS separately from ordinary sick leave and by discounting it from any absence management procedures. This is especially important where the employer imposes sanctions on employees for sickness absence. Employers should also consider allowing affected employees paid time off to attend appointments related to their MS.

Managing relapses

If an employee has a relapse, they may be unable to work. Communication is key to managing the situation and employers should avoid putting pressure on an employee to return to work before they are well enough to return. When they are ready to return to work, employers should hold a meeting with their employee in advance to discuss any extra support they may need. This will ensure there is time to implement any reasonable adjustments that they may require. It may, for example, also be suitable to consider a phased return.

Closing thoughts

There is no ‘one size fits all’ approach to managing MS in the workplace. That is because MS affects those who are impacted by it in different ways. Employers should focus on opening up channels of communication, to help break the silence about MS, but also to ensure they are best placed to retain talent and support employee needs.

If you would like to know more, or your business needs advice, please contact Theo Nicou (theonicou@bdbf.co.uk) or your usual BDBF contact.

Do NDAs stop finance employees from flagging workplace discrimination

Employment Law News

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Do NDAs stop finance employees from flagging workplace discrimination

Ever since the Weinstein scandal broke in 2017, there has been concern about the use of non-disclosure agreements – known as NDAs – to silence victims of sexual harassment and assault. Legislators in the US continue to tackle the improper use of NDAs. So what’s the position here in the UK? In this article for the Financial Reporter, BDBF Partner, Claire Dawson, looks at the protection individuals have if they speak up about discrimination and harassment after signing an NDA.

View the article here: https://www.financialreporter.co.uk/features/do-ndas-stop-finance-employees-from-flagging-workplace-discrimination.html

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