[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=”3.25″ custom_padding=”|||”][et_pb_column type=”4_4″ _builder_version=”3.25″ custom_padding=”|||” custom_padding__hover=”|||”][et_pb_text _builder_version=”3.27.4″ background_layout=”dark” custom_margin=”0px|||” custom_padding=”0px|||”]

Employment Law News

[/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=”3.25″ 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″]

Diversifying the boardroom

On 12 March 2021, the Parker Review Committee published its update report setting out its survey results of FTSE 100 companies on the ethnic diversity of their boards.  In this article, BDBF Associate, Theo Nicou, reflects on the progress that has been made over the last three years and what work is left to do.

What is the Parker Review Committee?

The Parker Review Committee, led by Sir John Parker, the former lead non-executive director for the Cabinet Office and renowned business leader, is a body that considers how to improve the ethnic and cultural diversity of UK boards to better reflect their employee base and the communities they serve.

When was it formed and what did it recommend?

Commissioned by the Department for Business, Energy and Industrial Strategy (BEIS) in 2015, the Parker Review Committee launched its ‘Report into the Ethnic Diversity of UK Boards’ in 2017.

The Committee found that only 8% of the total director population were directors of colour compared to UK society which is comprised 14% from a “non-white” ethnic group.

The report made three broad recommendations:

• Increase the ethnic diversity of UK boards.
• Develop candidates for the pipeline and plan for succession.
• Enhance transparency and disclosure.

What specific targets did it set?

FTSE 100 firms were given until the end of 2021 to appoint at least one non-white board-level director – known as “one by 2021”.

FTSE 250 companies will be surveyed by the end of 2021 and were given until 2024 to appoint at least one minority ethnic director to their boards.

What are the survey results?

All FTSE 100 companies were surveyed on 2 November 2020, with the following results:

• 74 companies reported they have a director from a minority ethnic group on their board. This is up from 52 in January 2020, an increase of 22.
• 21 companies reported that they did not have any directors from a minority ethnic group on their board.
• Two companies reported that their current board composition was unknown at the time of the survey.
• Three companies did not respond to the request to submit their data.

By March 2021, a further seven FTSE 100 companies had appointed directors from a minority ethnic group.

Sir John Parker has said that, in future, FTSE 100 and FTSE 250 companies will be asked to report specifically on the proportion of black representation on their boards.

What progress has been made and what more is there to do?

With 81 FTSE 100 firms now meeting the voluntary target for “one by 2021”, progress is no doubt being made and should be celebrated.  However, almost 20% of the UK’s largest listed firms are still led by all-white boardrooms and there’s only nine months left to meet the target. Further, only five ethnic minority directors occupy a CEO position, all of whom are men, demonstrating that there is still more work to do on both the ethnicity and gender fronts.

Closing thoughts

It has been demonstrated that boards benefit greatly when they include the best range of talent, skill sets and relevant experience available, and society benefits when they broadly reflect the employees, shareholders and customers they serve.

While steps are being made in the right direction, it is vital that the targets set are achieved and that they are just the start of sustained positive change.

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

[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=”3.25″ custom_padding=”|||”][et_pb_column type=”4_4″ _builder_version=”3.25″ custom_padding=”|||” custom_padding__hover=”|||”][et_pb_text _builder_version=”3.27.4″ background_layout=”dark” custom_margin=”0px|||” custom_padding=”0px|||”]

Employment Law News

[/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=”3.25″ 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″]

International Women’s Day 2021

#ChooseToChallenge

Today is International Women’s Day.  All over the world organisations and communities are gearing up to celebrate women’s achievements and rally for equality.

The goal of International Women’s Day is to bring attention to the social, political, economic, and cultural issues that women face, and to advocate for the advancement of women within all those areas.  Organisers state: “Through purposeful collaboration, we can help women advance and unleash the limitless potential offered to economies the world over.” 

How it all began

“My own sex, I hope, will excuse me, if I treat them like rational creatures, instead of flattering their fascinating graces, and viewing them as if they were in a state of perpetual childhood, unable to stand alone” – Mary Wollstonecraft

When we think of the Women’s Rights Movement, our minds visualise the suffragette marches and the second wave of feminism which took place, mainly in the United States, during the 1960s and 70s.  However, one of the first campaigners for women’s rights Christine de Pizan, a poet and author at the court of King Charles VI of France and several French dukes.  She wrote The City of Ladies in 1402, a book which celebrated famous women throughout history and explored themes such as the criminality of rape, the natural affinity in women to learn, and their talent for government.  The City of Ladies is still considered to be one of the pioneering feminist texts.

In the UK, the modern women’s rights movement began with Mary Wollstonecraft (1759-1797) and the publication of her ground-breaking book Vindication on the Rights of Women. 

International Women’s Day was first celebrated in 1911 during the first feminist wave (circa 1880-1920) where a million men and women rallied in support of women’s rights.  Originally called International Working Women’s Day, over a million men and women attended rallies in Denmark, Germany, Switzerland, and Austria. In 1922, the first female solicitor was admitted and the first female barrister called to the bar.

In 1977, the United Nations got behind International Women’s Day, declaring it a day “to reflect on progress made, to call for change and to celebrate acts of courage and determination by ordinary women who have played an extraordinary role in the history of women’s rights.”

The 2021 International Women’s Day Theme

The theme for International Women’s Day this year is #ChooseToChallenge.  The official website states:

“A challenged world is an alert world. Individually, we’re all responsible for our own thoughts and actions – all day, every day.

We can all choose to challenge and call out gender bias and inequality. We can all choose to seek out and celebrate women’s achievements. Collectively, we can all help create an inclusive world.

From challenge comes change, so let’s all choose to challenge.”

Organisers are asking people to show their support by striking the Choose To Challenge pose and sharing images on social media using #ChooseToChallenge #IWD2021.

Get Involved

The Coronavirus pandemic has compounded a longstanding problem: women around the world often struggle to fully participate in economic and public life.  A recent study showed women, on average, enjoy only three-quarters of the legal rights men have, and they suffer from pronounced disparities regarding pay and accommodations for parenthood.  The picture is even bleaker in developing and patriarchal countries. 

There has been a significant rise in cases of domestic abuse, and the impact of the pandemic on women’s mental health and employment cannot be denied. Statistics show that women were more likely to work in a sector which has been shut down by the pandemic, and that mothers were 1.5 times more likely than fathers to have lost their job since lockdown started. For women who continued to work during lockdown, there has been a significant increase in time spent (based on hours per day) doing housework or caring for children, with paid working hours being almost double for men in a working day compared to women.

During these unprecedented times, there are many ways we can show our support:

• make donations, or volunteer your time to women’s organisations and charities;
• become a mentor for young women;
• launch initiatives within the workplace to raise awareness and provide a safe platform for women’s voices to be heard;
• implement flexible working arrangements;
• call out stereotypes and gender bias;
• celebrate women’s achievements.

Looking back through history, it is great to see the positive developments that have been made. International Women’s Day is a celebration of triumphs, but also a reminder that there is still much work to be done to achieve fairness and equality for all.

We need to work together to highlight areas where girls and women still face inequality and danger, and actively challenge gender-based stereotypes, bias and inequality.

Human rights are women’s rights and women’s rights are human rights – Hillary Clinton

[/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]

[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=”3.25″ custom_padding=”|||”][et_pb_column type=”4_4″ _builder_version=”3.25″ custom_padding=”|||” custom_padding__hover=”|||”][et_pb_text _builder_version=”3.27.4″ background_layout=”dark” custom_margin=”0px|||” custom_padding=”0px|||”]

Employment Law News

[/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=”3.25″ 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 celebration of International Women’s Day, Senior Associate, Emily Plosker examines one of the key employment rights afforded to women on maternity leave and looks at proposals to improve the position of pregnant women and new mothers in the workplace.

In our practice we often hear women start their stories with “when I announced my pregnancy, I noticed…” or “when I returned from maternity leave…” or worse “I am on maternity leave and my role is being made redundant”.

In March 2016, the Department for Business, Innovation and Skills and the Equality and Human Rights Commission report into pregnancy and maternity discrimination certainly painted a bleak picture for women in the workplace. The report found that one in nine mothers reported being subjected to such poor treatment that they felt they had to leave their jobs, being singled out for redundancy or just being dismissed where other colleagues were not. The survey research suggests that the redundancy rate among mothers at some point during pregnancy, maternity leave or on return from maternity leave is considerably greater than the redundancy rate among female employees as a whole. When one scales up these findings and applies them to the UK, it could mean as many as 54,000 mothers are subjected to potentially discriminatory treatment at work each year. What is more depressing is that only 1% of victims take legal action. The survey research suggests that redundancy rate among mothers at some point during pregnancy, maternity leave or on return from maternity leave is considerably greater than the redundancy rate among female employees as a whole with 11% saying they felt forced to leave their job.

These stark statistics have only been exacerbated by the pandemic, where numerous pieces of research demonstrate the disproportionate impact it has had on women in the workplace across a variety of areas (for example a disproportionate number of women have been placed on furlough, made redundant and/or have had to reduce hours or take unpaid parental leave due to childcare commitments, which will impact the gender pay gap in years to come).

Announcing your pregnancy and preparing to go on maternity leave can be daunting experiences, particularly if your workplace has a bad track record in its treatment of working parents. It is for this reason that there is protective legislation in place for pregnant women and those on maternity leave to make sure that their jobs are secure on return to work.

The current position under the Maternity and Parental Leave Regulations

The right which this article is going to focus on is Regulation 10 under the Maternity and Parental Leave etc. Regulations 1999 (or the MPL Regs for short).

Regulation 10 grants women on maternity leave additional protection in the event that their role is placed at risk of redundancy (however, this right does not apply before maternity leave starts or after it ends).  More specifically, if an employee’s role is put at risk of redundancy while on maternity leave, the employee is entitled to be offered “suitable alternative employment”. This duty extends beyond merely offering the opportunity to apply for a role – the role must be offered unequivocally. Crucially, an employee on maternity leave is given priority ahead of other employees who have been put at risk of redundancy but are not on maternity leave – in essence she gets “first dibs.” 

What is suitable alternative employment?

For a role to be “suitable” it needs to be: (i) suitable and appropriate for the employee to do in the circumstances; and (ii) on terms which are not substantially less favourable. Both these requirements must be considered together rather than as a sequential check list.

A dispute often arises as to what is or isn’t deemed “suitable”, which sadly can be driven by whether the employer actually wants the employee on maternity leave to return to work.

The factors that are usually taken into account when deciding whether a position is “suitable” include the role itself, the employee’s experience, geographical location and whether it will increase travel time or childcare costs.

Whether a role is suitable is determined from the point of view of an objective employer – not from the employee’s perspective. However, in practical terms it is often difficult for employers to reach a fair conclusion unless they consult with the employee.  It’s at this stage (assuming that the employee on maternity leave has been made aware of the redundancy and given an opportunity to engage in the process – which is not always the case) that an employee will need to consider how flexible they are to other options and make the employer aware of this.  Doing this may make it more difficult for the employer to deem a job unsuitable. Equally, no one wants to be shunted into a role which really is unsuitable and so it’s important to be as vocal as possible if the role proposed is not, in fact, suitable.

Failure to offer suitable alternative employment

If an employer fails to offer suitable alternative employment (either entirely or offers it to an employee who is not on maternity leave) which results in the employee being made redundant, the dismissal will be automatically unfair.

If, however, there is no suitable alternative employment available the employee’s employment (and maternity leave) will come to an end by reason of redundancy. The employer is still required to consult with the employee about the redundancy and this may include collective consultation depending on the numbers of redundancies involved.  The employer is also required to give notice (or pay in lieu of notice).

It is worth remembering that an employer’s duty to offer suitable alternative employment continues until such a time as the dismissal takes effect. As such, even when an employee on maternity leave is given notice of termination by reason of redundancy, if a suitable alternative vacancy becomes available during her notice period, the “first dibs” rule afforded by Regulation 10 continues to apply.

Even if a suitable alternative vacancy is not available, an employee may still have a separate right of action for ordinary unfair dismissal or discrimination on the grounds of sex/maternity/pregnancy. This might arise where the redundancy is a sham, if a fair procedure was not followed (for example, there was no consultation or the selection exercise was not objective), or the decision to dismiss was linked to the employee’s pregnancy, maternity leave or sex. With this in mind, it is vital that an employee on maternity leave engages with the consultation process and interrogates the employer’s decisions as much as possible – not an easy feat when sleep-deprived and juggling a baby.

Proposals for the future

There are concerns that some employers wait for women to return from maternity leave before announcing redundancies in order to avoid the Regulation 10 rights from being triggered. It is for this reason that in January 2019, the Department for Business, Energy and Industrial Strategy consulted about extending the protection afforded under Regulation 10 to apply from the point the employee notifies the employer that she is pregnant until 6 months after maternity leave has ended. The Government has since committed to introduce these changes, however, to date, no legislation has been brought forward.

In the meantime, Maria Miller MP proposed the Pregnancy and Maternity Redundancy Protection Bill in May 2019, with far more radical suggested solutions. The Bill failed to progress in May 2019 and was subsequently reintroduced in July 2020.  It is due its second reading on 12 March 2021 – progress has certainly been slow.

One of the proposed changes is that it will be automatically unfair for an employer to dismiss an employee by reason of redundancy if the dismissal occurs either during pregnancy, maternity leave or up to 6 months on return from maternity (the model adopted in Germany). This would not apply where the redundancy amounts to a business closure or a cessation of work in that area.

It is likely that the German model will be viewed as too radical, with the Government sticking to its original plan of extending Regulation 10 protection, which many argue, does not go far enough.

Concerns have also been expressed that introducing an automatic unfair dismissal right for pregnant women and maternity leavers/returners, would elevate maternity leave above other forms of parental leave. A simple solution would be to extend the protection to all forms of parental leave. But perhaps a more pragmatic approach would be to look at the statistics which identify consistent unfair treatment experienced by pregnant women and those on or returning from maternity leave. It cannot be that legislation should not change on the (unfounded) basis that it may promote one type of parental protection over another – progress is never made if we stick to the status quo. Indeed, whilst this proposed legislation may, on the face of it, only protect pregnant women and those on or returning from maternity leave, if that protection subsequently assists in altering stereotypical and outdated perceptions of women in the workplace, then that can only be a good thing for everyone.

If you would like to discuss how your organisation can support staff on maternity leave, please contact Emily Plosker (emilyplosker@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]

[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=”3.25″ custom_padding=”|||”][et_pb_column type=”4_4″ _builder_version=”3.25″ custom_padding=”|||” custom_padding__hover=”|||”][et_pb_text _builder_version=”3.27.4″ background_layout=”dark” custom_margin=”0px|||” custom_padding=”0px|||”]

Employment Law News

[/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=”3.25″ 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″]

Serious about equality at work? Then it’s time to look after menopausal women.

International Women’s Day on 8 March 2021 puts the spotlight on equality for women, including in the workplace.  By 2022, one in every six British workers will be a woman aged 50 or over – a woman very likely to be on her journey through the menopause.  Given that this phase of a woman’s life can be physically and emotionally turbulent, what should employers be doing to support employees to remain well, effective and happy at work?

What is the menopause, perimenopause and post-menopause?

Most people know that the menopause is the natural change experienced by women relating to the stopping of the menstrual cycle for a period of a year or more.  The menopause typically occurs between 45 to 55 years of age, but it can occur earlier.  In the UK, the average age for a woman to reach the menopause is 51 years of age.  What’s perhaps less well known is that in the years leading up to the menopause, a woman’s body is already starting to change – this phase is known as the perimenopause.  The perimenopause typically starts four or five years before the menopause itself.  

Many women experience the perimenopause and menopause as a difficult and stressful time in their lives and it is common to suffer from a variety of debilitating symptoms.   In addition, most women continue to experience these symptoms for up to four years after their menopause – this phase is known as the post-menopause.  Therefore, an average woman’s menopause journey will span a ten-year period, beginning at around 46 years of age and ending at around 55 years of age.

What are the symptoms of the menopause?

The symptoms of the perimenopause, the menopause and the post-menopause are the same, although the range and severity of symptoms suffered will vary for each individual and may change over time.  The TUC reports that around 80% of women experience noticeable symptoms and around a third of women find them difficult to deal with on a day-to-day basis.  There is also evidence to suggest that stress can worsen some symptoms.

The symptoms include the following:  

Why should employers care about the menopause?

Currently, around one out of every eight British workers is a woman over 50, and by 2022 this will increase to around one in six.  Given that a third of menopausal women experience severe symptoms, managing the impact of the menopause is something that most employers will need to grapple with at some point. 

It’s clear from the list of the symptoms that the menopause has the capacity to have a significant impact on a woman’s health and general wellbeing.   Not only can these symptoms adversely affect a woman’s performance at work, they can lead to periods of sickness absence.  One survey suggests that up to 14 million working days are lost each year in the UK due to the menopause.  In extreme cases, it may even lead to the woman leaving employment.  Therefore, it’s in an employer’s interests to support women through this period of their lives and avoid these negative outcomes where possible.

Employers should also be mindful of the risk of discrimination against a menopausal woman on the grounds of sex, age and/or disability.  This could arise in a number of ways, for example:

• Jill is menopausal and her performance dips as a result of loss of concentration, fatigue and poor memory. She is placed on a performance improvement plan (a PIP).  Jack’s performance has also dipped as a result of “long COVID” symptoms but he is not placed on a PIP.  This could amount to direct sex discrimination.
• Emma’s manager insists that team meetings take place early in the morning before the working day starts. Emma is menopausal and suffers from insomnia, night sweats and loss of concentration.  She finds it extremely difficult to attend the early meetings and when she does attend, she struggles to participate effectively.  The practice of holding the meetings early in the morning could amount to indirect sex discrimination.
• Lisa’s colleagues know she is going through the menopause and make jokes about it such as leaving a fan and a bag of ice on her desk and asking if she remembers what day it is. These jokes could amount to harassment related to sex and/or age.

More recently, Tribunals have been prepared to conclude that women suffering from menopausal symptoms are disabled for the purposes of the Equality Act 2010, meaning they are protected from disability discrimination.  For example, in the case of Davies v Scottish Courts and Tribunals Service (2018), a Tribunal concluded that a woman suffering from a range of perimenopausal symptoms (namely heavy bleeding, cystitis, light headedness, loss of concentration and feeling emotional) was disabled.  Her dismissal for conduct which had arisen out of those symptoms was discriminatory.

Similarly, in the case of Donnachie v Telent Technology Services Ltd (2020), a Tribunal decided that “typical” menopausal symptoms could amount to a disability, and that treatment for those symptoms (such as hormone replacement therapy) should be disregarded for the purposes of this assessment.  In that case, the woman suffered from a range of symptoms including hot flushes, disturbed sleep, fatigue, memory and concentration problems and anxiety.

Importantly, where an employee is disabled, the employer has a positive duty to make “reasonable adjustments” to remove or reduce any substantial disadvantage suffered by that employee compared to others.  For menopausal women, this could include things like ensuring the workplace is cool and well ventilated, adjusting start and finish times, allowing additional breaks and providing access to counselling services. 

What can employers do to support women going through the menopause?

The good news is that there are lots of things employers can do to support this valuable cohort of employees to remain well, effective and happy at work. 

• Conduct health and safety checks and take steps to minimise risk: Employers have duties to take care of the health, safety and wellbeing of all employees. This includes a duty to assess risks to health and safety in the workplace and takes steps to minimise those risks.   As far as the menopause is concerned, this means employers should take steps to ensure that symptoms are not made worse by the workplace or working practices and, where necessary, make changes to help women manage their symptoms whilst working.  This might include things like keeping the workplace cool, providing cold drinking water and making a restroom easily available.

• Bring in a menopause policy: It’s a good idea for employers to introduce a specific policy setting out its approach to menopause at work. A policy like this can help raise awareness of the issue amongst the wider workforce by explaining what the menopause is and the symptoms that women experience.  It can also normalise the issue by encouraging staff to have open conversations and to provide support to affected colleagues.  The policy can also explain the company’s approach to risk assessments and workplace adjustments.

• Provide training for line managers: Employers should also roll out training to line managers to ensure they understand what the menopause (and peri and post menopause) is and be able to spot symptoms. This understanding will help managers have discussions with affected employees in a supportive and sensitive manner.  Such training should also set out the legal duties and risks that arise and what kinds of support can be offered.

• Manage sickness absence or dips in performance carefully: Sickness absences and dips in performance should be handled with care, and support should be in place to minimise the impact of menopausal symptoms wherever possible. This may include making temporary or permanent changes to the woman’s job role, such as changing responsibilities or reducing hours.  In particular, employers need to bear in mind the risk of discrimination, especially disability discrimination, when recording levels of sickness absence.  Disability-related sickness absence should be recorded separately from other sickness absence and should usually be disregarded for the purposes of managing sickness absence.

• Consider having a menopause champion in the workplace: Larger employers may wish to consider introduce a key contact or “champion” with expertise on the issue for affected employees to talk to (e.g. a member of HR). As well as being a figurehead for the issue in the organisation, the champion can do other things such as help raise awareness, run training, review risk assessments and lead a support network.

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.

[/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]

[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=”3.25″ custom_padding=”|||”][et_pb_column type=”4_4″ _builder_version=”3.25″ custom_padding=”|||” custom_padding__hover=”|||”][et_pb_text _builder_version=”3.27.4″ background_layout=”dark” custom_margin=”0px|||” custom_padding=”0px|||”]

Employment Law News

[/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=”3.25″ 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″]

Discrimination: worker’s complaint about discrimination did not engage protection from victimisation

In Chalmers v Airpoint Ltd & Ors the Scottish EAT had to decide whether an articulate HR professional was protected from victimisation after she had made a vague allegation of discrimination in an email to her manager.

What does the law say?

Workers are protected from retaliatory action – known as victimisation – by their employer or colleagues because they have committed a “protected act”, or it is believed that they have done so or may do so.  The following are “protected acts”:

• bringing a claim under the Equality Act 2010 (the Act);
• giving evidence or information in connection with such a claim, regardless of who brought it;
• doing any other thing for the purposes of, of in connection with, the Act; and/or
• alleging that the employer or another person has breached the Act.

In order for an allegation to attract protection it doesn’t have to be factually correct, but it must be made in good faith.  Although no specific form of words is required, the allegation must be clear, and the overall context should indicate a relevant complaint.  The knowledge and experience of the complainant will be taken into account.

What happened in this case?

Mrs Chalmers worked for Airpoint Ltd as a Business Support Manager with responsibility for human resources functions.  In December 2016, Airpoint arranged a Christmas party.  Mrs Chalmers and the only other female member of staff were unable to attend.  In January 2017, Mrs Chalmers sent an email to her line manager complaining about her exclusion from the Christmas party and also from an office hardware refresh.  She said both of these matters “may be discriminatory”, but she did not specify upon what grounds.

Mrs Chalmers brought claims for sex discrimination, harassment and victimisation.  The allegation made in the January 2017 email was identified as the “protected act” for the purposes of the victimisation claim.  Despite the use of the word “discriminatory”, the Employment Tribunal held it was not clear that Mrs Chalmers was alleging that the Act had been breached.  It took into account the fact that she was articulate and experienced in HR matters.  Mrs Chalmers appealed to the Employment Appeal Tribunal (EAT).

What was decided?

Mrs Chalmers sought to argue that she had deliberately adopted a cautious tone because it was not her place to determine whether discrimination had occurred – that was for a Tribunal.  The EAT acknowledged that that use of the words “may be discriminatory” could, in some cases, amount to an allegation of unlawful discrimination.  However, this would turn on the overall context.

Here, Mrs Chalmers was an articulate and experienced HR professional, who was able to take a considered view on whether there had been discrimination on the grounds of sex.    The cautious tone and the absence of the words “on the grounds of sex” was a deliberate choice.  This was reinforced by the fact that other complaints in the grievance letter had been written in clear terms.   The EAT concluded that had Mrs Chalmers intended to allege sex discrimination, she would have done so.

The EAT also went on to consider the factual background of the case.  The Tribunal had found that Airpoint had not, in fact, discriminated against Mrs Chalmers in relation to the Christmas party.  Rather, it was just bad luck that she and the other female employees were unable to attend on the selected date.  By the time this had become clear, it was too late to rearrange things.

The EAT dismissed the appeal, holding that the Tribunal was entitled to find the words used in the January 2017 email did not qualify as a protected act.

What are the learning points for employers?

This decision shows that acquiring victimisation protection is not a certainty just because the word “discrimination” has been uttered.  However, employers should not read this decision as setting down a hard and fast rule about the language that a worker must use to make a protected act.  In different circumstances looser wording may be sufficient to get over the hurdle of having made an allegation of discrimination.  A less articulate worker, without experience of HR matters, is likely to be given more leeway by a Tribunal.

In the real world, it’s a high-risk strategy for employers to second guess whether such a complaint will count as a protected act or not.  Getting it wrong carries with it the danger of a costly victimisation claim.  For this reason, the prudent course of action is to treat any allegation of discrimination, no matter how vague, as a protected act.  As well as investigating the allegation in a timely fashion, employers should ensure that the worker is ringfenced from any action that could be viewed as detrimental.

Chalmers v Airpoint Ltd & Ors

If you would like to discuss any issues raised in this post please get in touch with Amanda Steadman (amandasteadaman@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]

[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=”3.25″ custom_padding=”|||”][et_pb_column type=”4_4″ _builder_version=”3.25″ custom_padding=”|||” custom_padding__hover=”|||”][et_pb_text _builder_version=”3.27.4″ background_layout=”dark” custom_margin=”0px|||” custom_padding=”0px|||”]

Employment Law News

[/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=”3.25″ 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″]

Failure to provide regular and effective equality training leaves employers on the hook for harassment claims

In the recent case of Allay (UK) Ltd v Gehlen, the EAT upheld a decision that staff equality training had become stale after 20 months.  The employer’s failure to refresh the training meant it couldn’t rely on the “reasonable steps” defence to a race harassment claim.

What does the law say?

Employers can defend claims that they are vicariously liable for the discriminatory actions of their workers where they have taken “all reasonable steps” to prevent them from doing such actions.  A similar defence is available in the whistleblowing sphere, where employers can defend claims that they are vicariously liable for the detrimental actions of their workers where they have taken all reasonable steps to prevent the detrimental treatment.

In the equality sphere, the reasonable steps that employers should take will include:

• having well-drafted equal opportunities and anti-harassment and bullying policies in place;
• ensuring that all workers are made aware of those policies and understand them;
• providing equality training to workers, with additional training for those with management responsibilities; and
• dealing with complaints quickly and effectively, including taking appropriate disciplinary action.

What happened in this case?

Mr Gehlen is of Indian origin and began working for Allay (UK) Ltd (Allay) in October 2016.  In August 2017, Mr Gehlen complained to a manager that another employee, Mr Pearson, had made racist remarks to him on a regular basis throughout his employment.  The manager took no action apart from telling Mr Gehlen to report the matter to HR.  It was also the case that some of the racist remarks had been overheard by two other employees, including another manager.  Neither had escalated the matter to HR.

Mr Gehlen was dismissed on 15 September 2017 on the grounds of performance.  He went on to raise a formal complaint about the harassment.  Allay investigated and concluded that Mr Pearson had made the remarks in question.  As a result, Mr Pearson was made to undergo equality training, however, it’s not clear whether he was disciplined.

Mr Gehlen went on to bring a claim of harassment in the Employment Tribunal.  Allay sought to rely on the reasonable steps defence, pointing to the fact that it had equal opportunities and anti-bullying and harassment policies in place and had trained staff, including Mr Pearson, on these areas in early 2015 (around 20 months before Mr Gehlen had started work).  That training contained one slide on harassment and also set out what employees should do if they overheard unacceptable remarks.

The Tribunal rejected Allay’s defence on the basis that the 2015 training had become stale and ceased to be effective.  This was demonstrated by the fact that the remarks had been made at all, and also by the fact that the two managers (and the other employee) had failed to react appropriately.  All of this was contrary to the training they had received and demonstrated a clear need for it to be refreshed.  It would have been a reasonable step to deliver such further training and this had not been done.

Allay appealed to the Employment Appeal Tribunal (EAT), arguing that the statutory defence only required reasonable steps to be taken and the effectiveness of those steps was not relevant.

What was decided?

The EAT rejected Allay’s appeal and upheld the Tribunal’s decision.   In doing so, the EAT offered some useful guidance on how the reasonable steps defence works in practice.

The EAT said that Tribunals should begin by looking at the steps that had already been taken.  Tribunals should assess how effective those steps were likely to be at the time they were taken.  Here, the EAT noted that Tribunal should have made more detailed findings about the effectiveness of Allay’s internal policies and the 2015 training.  Despite some obvious flaws, the Tribunal had accepted these as adequate and shifted their focus onto the question of whether the training had ceased to be effective over time.  Ultimately, this oversight did not undermine the Tribunal’s reasoning, but employers should expect Tribunals to scrutinise the content of policies and training much more closely in future in order to assess their quality and effectiveness.

When moving on to whether it would have been reasonable to have taken further steps, Tribunals should take into account when the existing steps ceased to be effective, as well as the cost and practicality of taking such further steps.  It may also consider the likely effectiveness of any such further steps – although it may still be reasonable to take a further step even if it wouldn’t prevent the discriminatory behaviour.

The EAT made some interesting observations on how training should be assessed:

• The length and depth of the training is important: the EAT said that “brief and superficial” training is unlikely to have a substantial effect in preventing harassment or have long lasting consequences. By contrast, “thoughtful and forcefully presented” training is more likely to be effective, and last longer.
• When training needs to be refreshed: the EAT said that if it becomes clear that harassment is still occurring and/or that staff didn’t understand the training, the employer will be on notice of the need to take further steps i.e. to improve and refresh the training. However, it conceded that if the training was of a good standard and the employer was unaware of the continuing harassment then the reasonable steps defence might still succeed.

In this case, the fact of the racist remarks and the managers’ failures meant there was sufficient evidence to conclude that the 2015 training was no longer effective.  Allay was deemed to have knowledge of the continued harassment (via the two managers) and this should have alerted them to the fact that more training was needed.

What are the learning points for employers?

The fundamental learning point for employers is to make sure that equality and whistleblowing policies and training are of a high quality and updated regularly.

In terms of frequency, we would recommend that policies are updated and circulated to staff each year.  Ideally, training should also be rolled out annually, and at any point that it becomes clear that the training has ceased to be effective (e.g. following an incident of harassment).  However, the better quality the training, the longer the shelf life, meaning longer training intervals may be appropriate.

As far as the format of training is concerned, the “gold standard” is to provide bespoke, face-to-face training in small groups, either in person or virtually.  This allows the training to be tailored to the particular industry, business and type of worker.  It also promotes engagement and allows the trainer to check that understanding is secure.  Together, this will help demonstrate the effectiveness of the training at the time it was delivered and that it had a longer shelf life.

However, training in this format will not always be feasible, for example, because of cost or the way that staff are organised (although geographical limitations will be less persuasive in the age of Zoom).  What other options are available to train staff and check continued understanding?  As a minimum, employers should ensure that policies are kept up to date and read by staff on a regular basis, perhaps with a signed acknowledgement from workers confirming that this has been done.

This can be supplemented by more cost-effective online training – either on a bespoke or generic basis.  As a starting point, Acas offers free online training on bullying and harassment and equality and diversity.  Again, workers should acknowledge that they have viewed such training and their learning should be tested via quizzes with a minimum pass mark.  However, additional training is still likely to be needed for managers and anyone with special responsibility for equality or whistleblowing matters, such as members of HR or investigation teams.

If you would like to discuss how BDBF can help you deliver effective equality and whistleblowing training to your staff 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]

[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=”3.25″ custom_padding=”|||”][et_pb_column type=”4_4″ _builder_version=”3.25″ custom_padding=”|||” custom_padding__hover=”|||”][et_pb_text _builder_version=”3.27.4″ background_layout=”dark” custom_margin=”0px|||” custom_padding=”0px|||”]

Employment Law News

[/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=”3.25″ 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” use_border_color=”off”]

Race equality week, what is it and how can you get involved?

Did you know that we are in the middle of the UK’s first ever Race Equality Week?  The week runs from 1 to 7 February 2021 and aims to bring UK employers, organisations and the wider public together to address issues affecting ethnic minority employees with the aim of igniting real change.

The Race Equality Network launched the initiative against the backdrop of the world-changing events that took place in 2020, namely the Black Lives Matter movement and the disproportionate impact of Covid-19 on ethnic minorities. These events generated a new level of public consciousness of race inequality on our doorstep in the UK.

The Race Equality Network have multiple events on this week and have highlighted on their website the ways for organisations and individuals to get involved by taking part in one or more of their three key initiatives  – The Virtual Badge Campaign, Safe Space and The Big Promise.

The theme of this year’s Race Equality Week

The theme of this year’s Race Equality Week is “Transparency, Accountability, Action” which is already a hot topic across many different sectors. The ambition for the week is “let’s not go back to normal”. An interesting point as prior to 2020, 75% of ethnic minorities experienced racism in the workplace. The week’s ambition is that we take what we have learnt from 2020 and use that to drive change.

In addition, lack of representation continues to be an issue.  Figures published by Business in the Community have shown that despite making up over 3% of the population of England and Wales, black people held just 1.5% of the 3.7 million director and manager level roles across the public and private sectors in 2019.  This is only a 0.1% increase since the last Race at the Top report in 2014.

What can employers do?

Beyond getting involved in the Race Equality Week initiative and events, employers should consider the measures set out in the Race at Work charter devised by Business in the Community.   The charter contains five calls to action to ensure that ethnic minority employees are represented at all levels in an organisation:

1. Appoint an Executive Sponsor for race: this should assist to provide visible leadership and drive key decisions. this approach has been adopted with some success in the context of improving gender equality within the workplace. For example, annual gender pay gap reports must be signed off by a director or equivalent within the business, and many reports now open with a statement by that person, outlining the company’s values and progress in that arena.

2. Capture ethnicity data and publicise progress: gathering ethnicity data from the employee population is essential to be able to monitor and report progress over time. This data will also be necessary if, and when, businesses are required to report on their ethnicity pay. However, there are many hurdles around collecting, analysing and reporting ethnicity data.  For example, employees are not legally obliged to disclose their ethnicity to their employer and research shows that self-declaration can be as low as 50%, meaning data sets will be incomplete.  Employers need to think carefully how they can encourage self-declaration (e.g. by demonstrating that the data will be kept secure) and ensure that it is collected at different points (e.g. at the recruitment stage and then again at the onboarding stage) and at regular enough intervals to enable progress to be monitored effectively.

3. Commit at Board level to zero tolerance of harassment and bullying: a recent survey revealed that 25% of ethnic minority employees reported that they had witnessed or experienced racial harassment or bullying from managers. Board level commitment should be secured to stamp this out.  In addition, appropriate training should be delivered across the workforce, clear policies must be put in place and a consistent approach taken towards any offending behaviour.

4. Make clear that supporting equality in the workplace is the responsibility of all leaders and managers: for example, performance objectives could be tied to such responsibilities. Again, this is something we have seen used to good effect in gender equality arena. For example, senior executives at TSB had their bonuses cut for failing to meet gender equality targets.

5. Take action that supports ethnic minority career progression: taking positive action has the potential to make the biggest impact on representation rates. Many employers will have embraced (or be prepared to embrace) positive action pre-recruitment, for example, deploying targeted advertising, outreach work and offering mentoring, training and networking opportunities.  However, few employers within the private sector will have used positive action at the point of recruitment, largely for fear of “reverse discrimination” claims.  BDBF have published a detailed paperand presentation on Positive Action in the Workplace, which aims to demystify this area of the law.

If you would like to discuss any of the issues raised in this article or how BDBF can help your business navigate race at work issues,  then please contact Hannah Lynn (hannahlynn@bdbdf.co.uk), 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]

[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=”3.25″ custom_padding=”|||”][et_pb_column type=”4_4″ _builder_version=”3.25″ custom_padding=”|||” custom_padding__hover=”|||”][et_pb_text _builder_version=”3.27.4″ background_layout=”dark” custom_margin=”0px|||” custom_padding=”0px|||”]

Employment Law News

[/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=”3.25″ 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” use_border_color=”off”]

Race Equality Week to kickstart long term racial equality at work

In this article, Melvyna Mumunie explains the continuing pressure on the Government to introduce mandatory ethnicity pay reporting and outlines the key considerations for its implementation. 

What is Race Equality Week and what is the key theme this year?

The UK’s first Race Equality Week runs from 1 to 7 February 2021. The initiative is designed to promote and effect change in the workplace – its stated aim being to unite “…hundreds of organisations and individuals in activity to address the barriers facing race equality in the workplace”.  The central theme for 2021 is “Transparency and Accountability”.

Although employer engagement will be key in a movement towards greater racial equality in the workplace, the Government holds the key to one of the most important mechanisms for promoting transparency and accountability – ethnicity pay reporting.

Where does the Government stand on ethnicity pay reporting?

It has been unlawful to discriminate in employment on the grounds of race since the implementation of the 1968 Race Relations Act.  Yet in 2018 the Government acknowledged that workers from ethnic minority backgrounds are still more likely to be in low paid and low skilled employment. In an effort to address the continuing issue of race inequality, the Government consulted on proposals to introduce mandatory ethnicity pay reporting for large employers (i.e. those with 250+ employees).  That consultation closed in January 2019 but the Government is yet to publish its response.  However, there are reasons to think that there is broad support for the consultation proposals.

In December 2020 the BBC reported that it had obtained an unpublished document in connection with the consultation, which revealed that 73% of the 321 respondents to the consultation supported compulsory ethnicity pay reporting for large employers.  Moreover, some organisations such as the Employment Lawyers Association and the Black Solicitors Network published their own responses to the consultation.  In response to the key question, “What are the main benefits for employers in reporting their ethnicity pay information?”, they highlighted several positives including the promotion of integrity and accountability, establishing and improving employee relations, marketing and profile-raising and societal benefit in the context of equal pay.

Is there an appetite for ethnicity pay reporting?

Despite the radio silence from the Government, calls for the introduction of the regime gathered momentum throughout 2020 amongst businesses, politicians and wider society.  For example:

• In 2020, a Parliamentary petition to introduce mandatory ethnicity pay reporting received over 130,000 signatures by the time it closed. The Government’s lukewarm response was to refer back to the consultation stating that: “The Government is continuing to analyse this data and is committed to responding to the consultation by the end of the year at the latest.” No response was published in 2020.
• In February 2020, the Confederation of British Industry renewed pressure on large employers by calling for companies with more than 250 employees to publish their ethnicity pay data voluntarily, mirroring the format used for gender pay reporting. And employers have not baulked at this.   Many high profile organisations including the BBC, Deloitte, Network Rail and Lloyds Banking Group have led the way on voluntarily reporting their figures.  Furthermore, a PricewaterhouseCoopers’ poll of over 100 companies (that collectively employ more than one million UK employees) found an increase from 8% in 2018 to 23% in 2020 in voluntary ethnicity pay reporting amongst employers.
• More recently, Labour MP Stella Creasy’s Equal Pay (Information and Claims) Private Member’s Bill began its passage through Parliament in October 2020.  Amongst other things, the Bill seeks to introduce ethnicity pay reporting to organisations with 100+ employees. While Private Member’s Bills don’t often make it onto the statute books, this Bill has cross-party support and might just make it.  At the very least, it has the capacity to keep up the pressure on the Government in this area.

What are the keys to success?

For a reporting regime to effectively facilitate equality in the workplace, lessons should be learnt from the gender pay gap reporting regime introduced in 2017.

While most employers were comfortable with the idea of gender pay reporting, many found the process to be difficult and required external legal advice on navigating the process.  The complexity of the process led to the reporting of some highly improbable, inaccurate or questionable data in the early days of the regime. A clear and accessible framework for reporting will be key to enabling businesses to report their figures accurately and inform their strategy for change.

Raw data and numbers alone do not help employees or the public understand an employer’s pay gap information. Mandatory narratives and reporting of contextual data (e.g. a breakdown of ethnicities across the workforce, a breakdown of employees by region/geographical location and pay bands where relevant), would help address this issue.

Reporting poor figures can lead to public embarrassment, but embarrassment does not necessarily result in change.

Employers should also be encouraged to publish action plans and report on how pay gaps will be closed.   Employers should also be encouraged to report on, and take into account, various overlapping characteristics for example, ethnicity and gender.  This will help employers develop meaningful strategies to address complex pay disparity issues affecting employees.

Closing thoughts

Clearly, there is an appetite for an ethnicity pay reporting regime and it may be within grasp.  The Government would do well to approach the implementation of the regime with great care to ensure that it is more than just a tick box compliance exercise.  Of course, the approach may need to be developed and refined over time, but there are many clear lessons that can be learnt from the events of the past year, historical data collection and the gender pay gap reporting regime.

If you would like to know more, or your business needs advice, please contact Melvyna Mumunie (melvynamumunie@bdbf.co.uk), 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]

[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=”3.25″ custom_padding=”|||”][et_pb_column type=”4_4″ _builder_version=”3.25″ custom_padding=”|||” custom_padding__hover=”|||”][et_pb_text _builder_version=”3.27.4″ background_layout=”dark” custom_margin=”0px|||” custom_padding=”0px|||”]

Employment Law News

[/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=”3.25″ 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″]

Just Blue Monday, or something more? 

The third Monday in January is typically labelled “Blue Monday” and is said to be the most depressing day of the year. Christmas festivities are over, the weather remains is cold and dark, New Year’s resolutions have fallen by the wayside and Christmas credit card bills are in but people have not yet been paid.

In 2021, people are likely to feel the effects of Blue Monday more acutely due to the third lockdown imposed by the government in response to the Covid-19 pandemic. It is therefore more important than ever for people to ask themselves whether any “blue” feelings are a temporary symptom of the season or a sign that they could be suffering from a more serious condition.

This article considers this question in the context of the workplace, although of course this issue is relevant to all aspects of life.

What if you’re just “feeling blue”?

Short periods of “feeling blue” are completely normal and for the most part do not interfere with doing your job. You might find that making use of informal support networks, such as attending (virtual) coffees with colleagues can be all that it takes to lift your spirits. Some employers have mental health first aiders and/or support helplines that can provide valuable advice for those needing more support. 

Whatever the case, you should keep your moods under review by keeping a record of how you feel from week to week. This does not need to be formal, but it can help you spot signs of a more serious or prolonged condition and will enable you to take appropriate measures to prevent it.  

What if it is something more serious?  

If you consider that you are already suffering from a more serious condition, it is important to seek support from a medical professional, like your GP.

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

If you believe your working conditions are affecting your health, start a conversation with your employer. It is important to discuss this with your line manager, HR, or someone else in the management chain that you feel comfortable approaching.

Let them know how you are feeling and what is causing you to feel unwell. Talk through the support you need to alleviate your condition. In some cases, it may be beneficial to attend an appointment with Occupational Health, so that a more formal support program can be put in place.

Depending on the nature and extent of your condition, you may have a “disability” under the Equality Act 2010. Your condition will amount to a disability if it is a physical or mental impairment and the impairment has a substantial and long-term adverse effect on your ability to carry out normal day-to-day activities. While there are many aspects to this definition, it is important to be aware that for a condition to be long term, so as to satisfy this part of the test, it needs to have lasted, or be expected to last, for at least 12 months. 

Importantly, employers are under a proactive duty to make reasonably adjustments for disabled employees to avoid the disadvantage caused by their disability in the workplace. For mental health issues, this duty arises irrespective of whether the impairment was caused by work or by an external factor.

The duty to make reasonable adjustments is the cornerstone of disability law. It arises only once the employer knows, or could reasonably be expected to know, of an employee’s disability. In practice, this means that you do need to communicate with your employer about your condition so that they are put on actual notice. This makes having a conversation with your employer incredibly important. For example, if you are unable to work because you are struggling with your mental health, you should consider making this clear during a return to work interview and on any sick notes provided by your GP rather than, as happens frequently, recording your absence as a cold or other such illness. As well as helping you to access immediate support, it will assist your position in any subsequent legal proceedings should the support you need be unavailable or should you be subjected to detrimental treatment.

It is unlawful for your employer to treat you unfavourably because of your disability. It is also unlawful for you to be treated unfavourably because of something arising in consequence of your disability, unless such treatment can be objectively justified. For example, some people with depression find it difficult to get up in the mornings, making them late for work. If this is an effect of your depression and you are disciplined for poor time-keeping, without account being taken of your depression, this could constitute discrimination arising from your disability, i.e. the unfavourable treatment was because of something that was not the disability itself, but caused by the disability. If you find yourself in this situation, it is important to be open with your employer about why your timekeeping suffers in the mornings and discuss whether changes can be made to your working pattern to assist you.

Conclusion

The stigma around mental health in the workplace is reducing, but there is still some way to go. If you are finding work difficult due to mental health reasons, an important first step is to have a conversation with someone within the organisation that you trust so that they can help you access the support that should be available, whether that is to alleviate the effects of Blue Monday or as part of a longer term need.  

[/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]

[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=”3.25″ custom_padding=”|||”][et_pb_column type=”4_4″ _builder_version=”3.25″ custom_padding=”|||” custom_padding__hover=”|||”][et_pb_text _builder_version=”3.27.4″ background_layout=”dark” custom_margin=”0px|||” custom_padding=”0px|||”]

Employment Law News

[/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=”3.25″ 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=”4.2.2″ text_orientation=”justified” use_border_color=”off”]

Racial stereotypes were discriminatory and justified dismissal without notice

In Lamonby v Solent University the Employment Tribunal had to consider whether it was fair to dismiss an employee who had made remarks which betrayed a tendency to stereotype according to race, even where such stereotypes were sometimes positive.

What does the law say?

Misconduct is a potentially fair reason for dismissal.  In order to show that it has dismissed fairly for misconduct, an employer must show that:

• it believed the employee to be guilty of misconduct;
• it had reasonable grounds for believing the employee was guilty of misconduct; and
• in forming such a belief on reasonable grounds, it carried out as much investigation as was reasonable in all the circumstances.

Most employers will stipulate within their disciplinary rules that discriminatory acts will be treated as gross misconduct warranting dismissal without notice.  Typically, separate internal policies (e.g. equal opportunities / anti-harassment) set out what constitutes discrimination, and this will include discriminatory remarks.

What happened in this case?

Mr Lamonby was a 73-year old part-time lecturer in engineering at Solent University (the University).  During a meeting with his course leader, Dr Bonar, it was alleged that Mr Lamonby made the following remarks:

• Black people “…didn’t have the heritage in their DNA to be able to do engineering” but that he had a “soft spot” for young black men because they are “underprivileged and many without fathers” and “need all the help they can get”;
• People from Africa and Lithuania “…had no basics in engineering. No family involved and no practice”;
• Jewish people were “…the cleverest people in the world” and that they had a “…particular gift” for physics;and
• Germans were “good at engineering” as they were “exposed to a high level of industry from an early stage in their lives”.

He also asked Dr Bonar if she was Jewish because of her ability in maths and physics.

Dr Bonar raised a complaint, stating that she had found the comments personally offensive and that she was concerned that students were being taught by someone with racist views.  The University instituted disciplinary proceedings on the basis that Mr Lamonby had breached the University’s Behaviour at Work Policy and the Solent Values Policy.

Mr Lamonby accepted he had made the remarks, save for the remark concerning DNA.  He apologised and said that he had not intended to be racist or upset Dr Bonar.  Yet, during the investigation and disciplinary process he continued to make inappropriate comments about racial and ethnic groups, including that black males “need extra help” and that Jews had “a special mind” and had “neurological differences”.

The University found that Mr Lamonby was guilty of gross misconduct and he was dismissed without notice.  Mr Lamonby brought claims of unfair dismissal and breach of contract in respect of the notice period.

What was decided?

Firstly, Mr Lamonby argued that the comments made to Dr Bonar were made in a casual, public environment (i.e. the canteen) and not within the workplace.  This was rejected outright by the Judge, who considered that a professional meeting on University premises clearly amounted to a workplace conversation.

Secondly, Mr Lamonby argued that his comments were sympathetic towards or positive about the groups mentioned and were not racist or offensive, meaning his dismissal was unfair.  However, the Judge concluded that ascribing certain abilities or talents (or the opposite of them) to a group by virtue of their nationality, race, ethnic or religious group was potentially racist and offensive.   For example, a Jewish person might feel such positive stereotypes demeaned their personal intellectual ability and hard work.  The Judge added that “…as with any such group, talents or abilities will vary wildly from individual to individual”.

The Employment Tribunal found that the dismissal was within the range of reasonable responses and dismissed the claims.

What does this mean for employers?

This decision serves as a helpful reminder that discrimination can occur even where the perpetrator has not intended to cause offence and/or does not believe they have behaved in a discriminatory manner.  In this case, despite having a clean disciplinary record, Mr Lamonby’s failure to recognise his wrongdoing meant that the University lost confidence in his ability to change (e.g. through training).   The decision also highlights that even positive racial stereotyping can be viewed as racist and offensive.

It’s worth noting that the University was assisted by the fact that it had clear anti-discrimination policies in place which had been well-publicised to staff.  This meant that Mr Lamonby understood the standard of behaviour expected of him, even though he hadn’t, in fact, read them.

Employers should ensure that their policies are clear (e.g. highlighting that positive racial stereotyping is discriminatory) and are circulated to employees on a regular basis.  Ideally, employees should be asked to acknowledge that they have read them and should also attend regular dignity at work training.

Lamonby v Solent University (Southampton)

If you would like to discuss any of the issues raised in this article 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]

[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=”3.25″ custom_padding=”|||”][et_pb_column type=”4_4″ _builder_version=”3.25″ custom_padding=”|||” custom_padding__hover=”|||”][et_pb_text _builder_version=”3.27.4″ background_layout=”dark” custom_margin=”0px|||” custom_padding=”0px|||”]

Employment Law News

[/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=”3.25″ 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=”4.2.2″ text_orientation=”justified” use_border_color=”off”]

Employer discriminated against depressed employee by failing to guarantee that she would not have to work with alleged harassers again

In this case, the EAT considered whether it would be a reasonable adjustment for an employer to provide an undertaking to a disabled employee guaranteeing a severance package in the event that it could not maintain certain working arrangements. 

What does the law say?

Where an employer’s provision, criterion or practice (PCP) places a disabled employee at a substantial disadvantage compared to non-disabled employees, the duty to make reasonable adjustments will arise.  Employers must consider whether an adjustment would lessen the disadvantage and, if it would, whether it is a reasonable step to take in the all the circumstances.  Reasonable adjustments can cover a wide range of possible actions, from adjustments to physical premises (e.g. widening a doorway to allow wheelchair access) to changes to company rules and/or practices (e.g. standard working hours or sickness absence policies).

Where an employer fails to make reasonable adjustments, the employee is able to bring a claim seeking compensation and/or a recommendation that the employer takes appropriate steps to alleviate the disadvantage.

What happened in this case?

The Claimant was employed by Lloyds Bank.  She alleged that she had been bullied and harassed by her line manager, M, and M’s line manager, B.  She went off sick with stress and depression for 16 months and raised a grievance, which was not upheld.  When she eventually returned to work, she made it clear that she did not wish to work with M or B ever again.  Although she was not, in fact, working with M or B (who were based at different offices to her), she asked the Bank to give her an undertaking that:

• it would not rearrange duties or roles with the result that she would have to work with, or report to, M or B in future; and
• if that could not be achieved, it would offer her a severance package equivalent to what she would have received had she been redundant.

The Bank said that it would aim to avoid her working with M or B again, but this could not be guaranteed, nor was it willing to offer the alternative of a severance package.

The Claimant claimed that the Bank’s position represented a failure to make reasonable adjustments.  She argued that she was placed at a substantial disadvantage to a non-disabled person (her disability being reactive depression), because the fear of working with M or B again aggravated symptoms such as hair loss, panic attacks, exhaustion and feelings of dread and hopelessness.

What was decided?

The Employment Tribunal upheld the claim. They awarded £7,500 for injury to feelings and made a recommendation requiring the Bank to provide the undertaking requested by the Claimant.  However, the recommendation was set aside upon reconsideration.  The Bank appealed against the decision, including the original recommendation.  The Claimant appealed against the later decision to set aside the recommendation.

The Employment Appeal Tribunal (EAT) decided that the Bank’s unwillingness to give an undertaking was not a one-off decision, but was a “practice” susceptible to adjustments, and it could be reasonable to give an undertaking providing a disabled employee with special financial benefits in certain circumstances.  Although the purpose of making reasonable adjustments is to keep disabled employees in work, rather than to deal with exit terms, the underlying purpose of the proposed undertaking was to allow the Claimant to work without fear and so remain in work.

The EAT concluded that the Bank had failed to make reasonable adjustments and that the recommendation to provide the undertaking was an appropriate remedy.  It rejected the Bank’s objections that recommendations should not have potential financial implications or last indefinitely.  However, it accepted that the original recommendation made by the Tribunal was inadequate in several respects and it was right to have set it aside.  The EAT remitted the question of precisely what form of recommendation should be made.

What does this mean for employers?

This decision shows how wide-ranging the duty to make reasonable adjustments can be.  Here, the employee’s grievance had been rejected, she was not working with the alleged perpetrators and the Bank had said it would do its best to keep them apart in future.  However, this did not remove the need to also make reasonable adjustments: the Claimant was still fearful, this fear exacerbated her condition and caused her to suffer a substantial disadvantage.

Employers should also remember that the duty to identify appropriate reasonable adjustments lies with them and not with the employee.  Accordingly, employers must proactively consider whether committing to working arrangements (and to severance terms if such arrangements cannot continue) would amount to a reasonable adjustment in any particular case.

Hill v Lloyds Bank plc

If you would like to discuss any of the issues raised in this article 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]

[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=”3.25″ custom_padding=”|||”][et_pb_column type=”4_4″ _builder_version=”3.25″ custom_padding=”|||” custom_padding__hover=”|||”][et_pb_text _builder_version=”3.27.4″ background_layout=”dark” custom_margin=”0px|||” custom_padding=”0px|||”]

Employment Law News

[/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=”3.25″ 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=”4.2.2″ text_orientation=”justified” hover_enabled=”0″ use_border_color=”off”]

Black livelihoods matter

At a time when racial inequality is at the forefront of everyone’s minds, new figures revealing the continuing underrepresentation of black people in senior positions in the UK have led to calls for action to secure more diverse workforces.

New figures published by Business in the Community have shown that despite making up over 3% of the population of England and Wales, black people held only 1.5% of the 3.7 million director and manager level roles across the public and private sectors in 2019.  This represents a meagre 0.1% increase in the 6 years since the Race at the Top report was last published in 2014.   In contrast, white people held 89.6% of such positions in 2019, which exceeds the white population figure of around 86%.  These figures have led to calls for change.

Sandra Kerr CBE, race director at Business in the Community, said: “Black livelihoods matter and employers need to take urgent action to ensure that their organisation is inclusive and a place where people of any ethnic background can thrive and succeed.”

At the same time, 29 senior business leaders co-signed a letter to The Sunday Times calling for greater diversity at senior levels within British businesses.  Senior leaders from businesses such as BT, Tesco, Sainsbury’s, ITV and John Lewis said that firms needed to address “systemic racism”.  The 29 signatories also committed to setting diversity targets for candidate slates for every vacancy within their business.

What can employers do to address the representation gap?

Business in the Community has devised a Race at Work charter calling for signatories to take the following five steps:

• Appoint an executive sponsor for race within the business to provide visible leadership and drive key actions: this approach has been adopted with some success in the context of improving gender equality within the workplace. For example, annual gender pay gap reports must be signed off by a director or equivalent within the business, and many reports now open with a statement by that person, outlining the company’s values and progress in that arena.
• Gather and report data: gathering ethnicity data from the employee population is essential to be able to monitor and report progress over time. This data will also be necessary if, and when, businesses are required to report on their ethnicity pay gap (see below).  However, there are many hurdles around collecting, analysing and reporting ethnicity data.  For example, employees are not legally obliged to disclose their ethnicity to their employer and research shows that self-declaration can be as low as 50%, meaning data sets will be incomplete.  Employers need to think carefully how they can encourage self-declaration (e.g. by demonstrating that the data will be kept secure) and ensure that it is collected at different points (e.g. at the recruitment stage and then again at the onboarding stage) and at regular enough intervals to enable progress to be monitored effectively.
• Zero tolerance of harassment and bullying: 25% of black and ethnic minority employees report having witnessed or experienced racial harassment or bullying from managers. Board level commitment should be secured to stamp this out.  In addition, appropriate training should be delivered across the workforce, clear policies must be put in place and a consistent approach taken towards any offending behaviour.
• Make supporting equality in the workplace the responsibility of all leaders and managers: for example, performance objectives could be tied to such responsibilities. Again, this is something we have seen used to good effect in gender equality arena.  In December 2019, senior executives at TSB had their bonuses cut for failing to meet gender equality targets.
• Take action that supports ethnic minority career progression: taking positive action has the potential to make the biggest impact on representation rates. Many employers will have embraced (or be prepared to embrace) soft forms of positive action, such as deploying targeted advertising and outreach work and offering mentoring, training and networking opportunities.  However, few employers within the private sector will have used positive action at the point of recruitment, largely for fear of “reverse discrimination” claims. BDBF have published a detailed paper and presentation on Positive Action in the Workplace, which aims to demystify this area of the law.

What about pay inequality for black and ethnic minority workers?

As well as tackling representation gaps, employers are also now being urged to tackle ethnicity pay gaps.  One of the recommendations coming out of the 2017 McGregor-Smith Race in the Workplace report was that large employers should be required to publish ethnicity pay information as a means of improving workforce diversity.  In October 2018, Theresa May’s Government opened a consultation on introducing a system of mandatory ethnicity pay reporting, similar to the gender pay gap reporting regime. That consultation closed in January 2019 and the Government has yet to respond to it or take any action to introduce legislation.

Fast forward 18 months and a petition signed by over 100,000 members of the public has triggered a debate in Parliament on the issue, The Government’s response to the petition is that it is “still analysing” the responses to the consultation that closed in January 2019.  An 18-month window for producing a response seems like ample time (even allowing for Brexit and COVID-19) making it hard not to draw the conclusion that the proposal had been kicked into the long grass – until now.

The date for the Parliamentary debate has not yet been set and it remains to be seen whether this proposal will be resurrected.  With the figures reported by Business in the Community, and the powerful impact of the Black Lives Matter movement, it’s probably a case of “if not now, then when?”

If you would like to discuss any of the issues raised in this article or how BDBF can help your business navigate race at work issues,  then 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]