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Employment Law News

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Samira Ahmed wins BBC equal pay case – 10th January 2020

News TV host Samira Ahmed win her equal pay case against the BBC. Samira claimed that she had been underpaid for presenting Newswatch when compared to the pay received by Jeremy Vine for a similar BBC show, Points of View. Ahmed received £465 per episode for hosting Newswatch, while Vine received £3,000 per episode. Samira claimed she was owed almost £700,000 in back pay.

It was ruled unanimously that the BBC failed to prove the difference in their pay “because of a material factor which did not involve subjecting the claimant to sex discrimination”.

Comments from Polly Rodway, Partner:

“In a strong judgment, the Tribunal has concluded that the BBC has fallen foul of the principle of equal pay for men and women.  Specifically, that Ahmed was paid less for doing the same or broadly similar work to Jeremy Vine (comparing their work on Newswatch and Points of View) in circumstances where the BBC could not show that there was a neutral reason explaining the difference.”

“The Tribunal was clearly satisfied that Ahmed’s work was ‘like’ (i.e. the same or broadly similar to) Jeremy Vine’s work.”

“The burden therefore shifted to the BBC to show that the difference in their pay was for a reason other than gender (this is known as the material factor defence).  The Tribunal was unconvinced (and seemingly unimpressed) by the BBC’s arguments in this regard.  Ahmed’s claim was therefore successful.”

“In seeking to justify the pay difference, the BBC relied on a number of points including the higher profile of Points of View (as compared to Newswatch), and the higher public profile of Jeremy Vine.  The Tribunal dismissed both noting that the BBC had not put forward any evidence to show that the people who decided about Ahmed and Vine’s pay had taken this into account.  It could not therefore explain the reason for the difference. In fact in the case of audience recognition of Vine, the Tribunal scathingly notes that the BBC appeared to contradict itself by relying on Vine’s public profile figures which post-dated Vine’s pay determination.”

“This is strong and positive judgment.  Ahmed’s success in establishing her work was ‘like’ that of Jeremy Vine’s cut out a large swathe of analysis that would have been required had she failed on this point, and had to instead convince the tribunal that their work was of equal value.  The BBC’s failure to adduce evidence to explain the gender neutral reason for the difference in pay was clearly relevant, and the Tribunal appears to disapprove of their approach noting that speculation by other witnesses who were not involved in setting rates of pay does not discharge this burden.”

“This is a positive outcome for women fighting for equality with male counterparts.”

The Guardian featured the story, please see the story here: https://www.theguardian.com/media/2020/jan/10/samira-ahmed-wins-equal-pay-claim-against-bbc

Polly Rodway, a partner at the law firm BDBF, said: “There is a big floodgates argument here, so the ramifications of the judgment for the BBC will be significant as lots of other claimants will now pursue the BBC and, economically, they could end up paying a lot more in light of this judgment.

“We are talking about potentially many more claimants … I am not sure I can put a number on it but the costs could be millions.”

BDBF employment Lawyer, Tom McLaughlin appears on Sky News commenting on Samira Ahmed tribunal.

If you would like to discuss how we can help you, please contact Polly Rodway, Tom McLaughlin or our BDBF team.

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Employment Law News

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Stricter controls on the way for non-disclosure agreements in the employment context

It’s hard to believe that the #MeToo movement took off little more than two years ago.  Not only has the movement empowered victims to speak up against harassment and encouraged employers to reflect on their approach to dealing with such allegations, it has driven the Government to focus on what it can do about the practice of using non-disclosure agreements (NDAs) to hush up complaints.  In this briefing we consider the status of the various legislative proposals on the table, the latest guidance and the next steps for employers.

Government consultation on use of NDAs  – proposed new legislation

Earlier this year, the Government consulted on proposals to improve the regulation of NDAs in cases of workplace harassment or discrimination.  That consultation received 582 responses, the majority of which supported the protection of vulnerable workers from the improper use of NDAs by employers.  In July 2019, the Government responded to the consultation confirming that it would introduce new laws to provide that:

• NDAs cannot be used to prevent disclosures to the police, regulated health and care professionals and/or legal professionals;
• the limitations of NDAs are clearly set out in both employment contracts and settlement agreements;
• individuals signing up to NDAs in settlement agreements must receive independent legal advice on the nature and limitations of the clause; and
• NDAs that do not meet the legal requirements would be subject to enforcement measures.An offending clause in an employment contract would give rise to a claim for compensation and an offending clause in a settlement agreement would be void.

The fly in the ointment is that the Government committed to introducing these reforms “when Parliamentary time allows”.  Unsurprisingly, given the preoccupation with Brexit, these new laws have not yet seen the light of day.  It remains to be seen which parties will commit to introduce any or all of these reforms in their manifestos for the forthcoming General Election (and when they would be introduced).

Women and Equalities Select Committee report on use of NDAs – further proposals for reform

Despite this uncertainty, the Government has recently gone on to make further commitments for reform in this area. In June 2019, the Women and Equalities Select Committee (WESC) published a report on the use of NDAs in harassment and discrimination cases.  Gareth Brahams of this firm gave evidence to the WESC as part of its inquiry into this issue – you can read his evidence here.

The WESC report made 45 recommendations to Government concerning the regulation of NDAs and other related matters.  In October 2019, the Government published its response to the WESC report.  Notably, the response sets out further commitments to:

• consult on whether to require employers to provide a basic factual reference about a worker (on the basis that a failure to provide a reference can be problematic for victims of harassment or discrimination);
• consider whether to require employers to investigate all harassment and discrimination complaints, even where a settlement is reached;*
• consider whether to require employers to appoint a director or equivalent to oversee the anti-discrimination and harassment policies and the use of NDAs in relevant cases;*
• consider the adverse effects on individuals of publishing employment tribunal judgments online (e.g. blacklisting) and what, if any, safeguards could be adopted; and
• consider extending the time limit for bringing claims in the employment tribunal from 3 months to 6 months in cases involving sexual harassment or pregnancy or maternity discrimination.*

*Note that these proposals are already under consideration as part of a separate consultation on sexual harassment, pregnancy and maternity discrimination which closed in October 2019.

New guidance for employers on the use of NDAs

Another key commitment emerging from the Government’s responses to both the consultation and the WESC report was the publication of new guidance for employers and their advisers on the drafting and use of NDAs.   The Government identified various stakeholders who would be responsible for discharging this commitment, including the Equality and Human Rights Commission (EHRC), ACAS and the Solicitors Regulation Authority (SRA).

The EHRC has now published its guidance on the use of confidentiality agreements in discrimination cases.  The guidance is non-statutory – this means that an Employment Tribunal or Court is not obliged to take it into account but it may be used as evidence in legal proceedings where relevant. The guidance usefully clarifies the law on the use of NDAs (as it currently stands) and offers wide-ranging recommendations of best practice in this area.  Employers should note the following key best practice points on the use and drafting of NDAs:

• avoid using NDAs as a matter of course – weigh up whether they are really needed on a case by case basis;
• where it is felt that an NDA is needed, stick to what is necessary and appropriate to the particular circumstances of the case – if in doubt seek legal advice on the wording;
• apply carve outs to the NDA to permit the worker to have discussions with various parties such as: regulators, the police, immediate family members and a potential employer;
• avoid using warranties which require the employee to promise that they are not aware of anything that would be a protected disclosure or a criminal offence as this could silence the employee from speaking out (and it is unlawful to prevent a worker from making protected disclosures or reporting criminal offences);
• where an NDA is used, there should be a mutual obligation on the employer to keep matters secret;
• ensure that the use of the NDA is signed off by a director (or equivalent) or other senior manager and not by someone implicated in the complaint itself or involved in the hearing of the complaint; and
• ensure workers are given time to read and reflect on any NDA and discuss it with their adviser if appropriate.

More generally, employers are advised to monitor discrimination complaints and the use of NDAs to help identify any systemic issues.  For large employers this means holding a central record of NDAs which is overseen by the board of directors (or equivalent).  Further, employers are advised to investigate all allegations of discrimination and harassment – even where there is a settlement – and take any reasonable steps to prevent the discrimination occurring again in future.  The EHRC notes that a failure to do this may make it harder for employers to defend future discrimination complaints.

Separately, ACAS has announced that it will publish its own guidance on the use of NDAs, although it is not known when.  The SRA has indicated that it will update its warning notice to solicitors (published in March 2018) to align with the forthcoming legislative reforms.  The Law Society has also committed to update its practice notice on the subject.  Once the legislative reforms are in place, the Government has said that it will run an awareness raising campaign for employers to highlight the changes and the new sources of guidance.

What action should employers take now?

As well as continuing to monitor developments in this area, employers should:

• ensure they have read and acted upon any guidance from a relevant regulator (for example, in-house lawyers will be expected to comply with the guidance issued by the SRA);
• update template employment contracts and settlement agreements with a view to being able to comply with the new legislative requirements in due course; and
• read the EHRC’s guidance and benchmark internal practices and procedures against it.

BDBF can help your business navigate these changes. If you would like to discuss how we can help, please contact Amanda Steadman or your usual BDBF contact.

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Employment Law News

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Unwanted shoulder massages at work did not amount to harassment

In the era of #MeToo, employers are under increasing pressure to stamp out sexual harassment in the workplace.  Faced with a more knowledgeable and vocal workforce, employers must ensure that the workplace culture does not encourage or tolerate inappropriate conduct, with managers expected to model exemplary behaviours.  That being the case, the recent decision in Raj v Capita Business Services and anor may seem surprising.  However, it reminds us that the context in which alleged harassment takes place is a vital part of the jigsaw and may, on occasion, mean that no unlawful conduct has taken place.

What does the law say?

The Equality Act 2010 prohibits harassment at work on certain grounds.  This covers unwanted conduct of a sexual nature or related to sex which violates the worker’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment.

Claims can be brought against both the individual perpetrator of the harassment and the employer.  Even where an employer doesn’t know about the harassment, it will be vicariously liable unless all reasonable steps had been taken to prevent such conduct from happening.

What happened in this case?

Mr Raj was employed by Capita Business Services Ltd for about a year.  His employment was terminated during the probationary period on the grounds of poor performance.  He went on to bring a suite of claims, including one for sexual harassment and/or harassment related to his sex.  Mr Raj complained that his Team Leader, a Ms Ward, had massaged his shoulders, neck and back on several occasions at work.  Mr Raj’s former colleagues gave evidence that they had witnessed this take place.

What was decided?

The Employment Tribunal found that the massaging had occurred on two or three occasions and had made Mr Raj feel uncomfortable.  Yet they rejected the claims for the following reasons:

• The massaging did not amount to conduct “of a sexual nature” because of the context in which had arisen. It was limited, had taken place in an open plan office and had been accompanied by “jokey” expressions of praise from Ms Ward.  This was not consistent with sexual behaviour.  It was also pertinent that Mr Raj had not reported the matter to his union representative at the time.
• The massaging did not amount to harassment “related to” the fact Mr Raj was a man. The Tribunal accepted that the conduct was unwanted and had the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment.  They noted that some physical contact at work would obviously amount to harassment, but this case was “very difficult to assess”.  Ultimately, they decided there was insufficient evidence to say that the conduct related to Mr Raj’s sex.  Instead, it was best characterised as “misguided encouragement” from a manager towards an under-performer, involving contact with a “gender neutral” part of the body in an open plan setting.

Mr Raj’s appeal to the Employment Appeal Tribunal was dismissed on the basis that the Employment Tribunal had made detailed findings about the context in which the massaging had occurred and was entitled to reject the claims.

What are the learning points?

We should not interpret this decision as approving shoulder massages or similar physical contact at work.  The employer (and Ms Ward) avoided liability here due to the specific context in which the touching arose.  In a different scenario, similar types of touching could amount to harassment.

Employers must ensure they have taken all reasonable steps to prevent inappropriate behaviour at work.  This means having a policy in place, communicated to all staff, setting out examples of unacceptable behaviour and clarifying that breaches will result in disciplinary action.  Alongside this, employers should deliver regular dignity at work training and be confident that they know how to deal with complaints of sexual harassment in line with the best practice guidance issued by Acas.

Employers should also monitor developments in this area closely as significant reforms are on the horizon.  The Government has announced the imminent introduction of a statutory code of practice in this area.  It has also recently consulted on a range of measures designed to eradicate sexual harassment at work, including introducing a statutory duty on employers to protect employees from harassment.  That consultation closed on 2 October 2019 and the Government’s response is awaited.

Raj v Capita Business Services and anor

If you would like to discuss any of the issues raised in this article, please contact Amanda Steadman on 020 3828 0363 or email amandasteadman@bdbf.co.uk.

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Employment Law News

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Vegetarianism is not a philosophical belief under the Equality Act 2010

To date, an eclectic range of beliefs have acquired protection from discrimination at work, from beliefs in climate change, Scottish nationalism and the ability of mediums to communicate with the dead, to beliefs against lying, fox hunting and hare coursing.  Therefore, one could be forgiven for thinking that a belief in vegetarianism would easily acquire protection.  Yet in the case of Conisbee v Crossley Farms Ltd an Employment Tribunal ruled that vegetarianism did not pass the test.

What does the law say?

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

• be genuinely held and 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;
• be worthy of respect in a democratic society; and
• not be incompatible with human dignity or conflict with the fundamental rights of others.

What happened in this case?

Mr Conisbee was a vegetarian.  He worked as a waiter for Crossley Farms Ltd for five months.  He resigned shortly after a dispute at work and proceeded to claim he had been discriminated against on the grounds of philosophical belief, namely vegetarianism.  In order to proceed with his claim, Mr Conisbee first had to convince the Employment Tribunal that a belief in vegetarianism qualified for protection under the Equality Act 2010.

He argued that he had a genuine belief in vegetarianism based on the premise that it was morally wrong to subject animals to cruel farming methods and kill them for food.  He also believed vegetarianism was better for the environment.  He pointed to the fact that vegetarianism had been recognised as a belief for the purposes of the European Convention of Human Rights and that other less mainstream beliefs had successfully acquired protection under the Equality Act 2010.

What was decided?

Surprisingly, the Tribunal was not persuaded that vegetarianism was a belief capable of protection for the following key reasons:

• Mr Conisbee did not have a principled objection against killing animals for food. Instead, it was better described as an opinion or viewpoint that the vegetarian way of life was better than a carnivorous one.
• This belief was little more than an admirable lifestyle choice and did not concern a weighty and substantial aspect of human life and behaviour.
• The plurality of reasons for becoming a vegetarian (e.g. lifestyle, health, animal welfare, personal taste etc.) meant it did not attain the necessary level of cogency, seriousness, cohesion and importance. The Tribunal contrasted this with veganism “…where the reasons for being a vegan appear to be largely the same”,namely a principled objection against eating animal products on welfare and/or environmental grounds.

What are the learning points?

For now, it seems that vegetarians do not acquire special protection from discrimination in the workplace.  However, this decision suggests that veganism is a more cogent belief system and leaves open the question of whether it is a protected philosophical belief.

That question will be answered in the case of Casamitjana v The League Against Cruel Sports, where a Tribunal will rule on whether Mr Casamitjana’s “ethical veganism” is a philosophical belief worthy of protection.  Given the indications made by the Tribunal in this case, it seems likely that ethical veganism will pass the test and acquire protection.

If veganism is protected then employers will need to be mindful not to discriminate against workers on this basis.  A recent survey of 1,000 vegan employees revealed that almost half felt they had been discriminated against by their employer and almost a third felt they had been harassed or unfairly treated at work due to their veganism. Particular risk areas include failing to provide vegan food options in the staff canteen and at work events or having a requirement to wear leather shoes or otherwise use leather products.  Employers should also ensure that they have taken reasonable steps to prevent the harassment of vegans.  This will include training on dignity at work which reminds the workforce that unwanted teasing of vegan colleagues could constitute unlawful harassment.

Conisbee v Crossley Farms Ltd and others

If you would like to discuss any of the issues raised in this article, please contact Amanda Steadman on 020 3828 0363 or email amandasteadman@bdbf.co.uk.

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Employment Law News

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The menopause taboo: employers who ignore their responsibilities risk claims

Recent UK media headlines have focused on pioneering private medical treatment being offered to women to postpone the menopause by removing a piece of their ovary by keyhole surgery, freezing it and then regrafting it when a woman’s natural menopause arises. The procedure could cost between £7-£11,000 and is being offered to women under the age of 40. What about those women that cannot afford this cost, or those over the age of 40?

Kate* an analyst in the City, sometimes felt she was losing her mind.  She had always been smart and tenacious, earning a first-class honours degree in economics, after which she went to work in the specialist area of complex international investment funds.  However, now in her early 50s, she worried that her intelligence, reason, and her body were working against her almost every day.

Like many women, Kate battles with peri-menopause.  She suffers from insomnia, muscle aches, night sweats, hot flushes, and mood swings. But it is the brain fog that gets her most, wreaking havoc on her professional confidence.  She has gone from being at the top of her game, to struggling to get through each day, and sometimes feeling completely incompetent in her role.

But she tells no one. Because she knows that in her male-dominated profession, menopause is often at best misunderstood, and at worst, seen as a sign of a woman being “well past her prime”.

There are around 4.3 million women aged 50 and over in employment in the UK (ONS 2015) and the biggest increase in employment rates over the last 30 years has been for women aged 55-59 (from 49% to 69%). According to figures quoted during a World Menopause day Debate in the UK House of Commons in 2018 about 50% of working women say menopausal symptoms make it difficult to do their jobs, and 10% give up work altogether as a result.

So why is menopause still seen as a taboo topic?

In the recent House of Commons debate, the Minister for Women, Victoria Atkins, stated that it is in employers’ interests to ensure that they have policies that adapt to the growing number of women who are experiencing peri-menopausal and menopausal symptoms at work.  Her comments echo a July 2017 report by the Government Equalities Office, titled ‘The effects of menopause transition on women’s economic participation in the UK’ which calls for the introduction of new measures to better accommodate working women dealing with the condition.

However, in order to support menopausal women, we first need to understand what perimenopause and menopause actually is.  

What is menopause?

The menopause occurs when a woman stops having periods and is no longer able to become pregnant naturally.  The average age of natural menopause is 51, and the symptoms of menopause can begin several years earlier (referred to as ‘perimenopause’); as such, many female workers experience menopause ‘transition’ during their working lives.

Menopause transition involves a wide range of physical and psychological transition symptoms; there is no uniform experience, but symptoms (which usually last around four years though can be longer) can include hot flushes, night sweats, insomnia, depression, anxiety, and decreased memory and concentration.  While some women have very few symptoms, many may benefit from workplace support to help lessen the impact on their professional life.

Not only can transition symptoms impact a woman’s ability to carry out her role effectively, but they can have detrimental effects on her career, including needing to work reduced hours, leaving work altogether (whether resignation or dismissal), and/or an ongoing fear of being targeted for redundancy.  The Government’s July 2017 report confirmed there is an emerging pattern in society whereby those experiencing menopause transition feel those around them (within the workplace) are unsympathetic or treat them badly because of “gendered-ageism”.

With the array of potential career-damaging possibilities, as well as the stigma often attached to menopausal women, it is little wonder that many of those women going through the transition period report feeling embarrassed and/or unwilling to discuss their symptoms with their employers, and feel that they have no option but to cope alone.  This is often exacerbated by employers who either don’t understand the symptoms of menopause, or how best to support menopausal women (often feeling reluctant to broach the subject), or do not want to take responsibility for supporting menopausal women in their workforce.

The legal position on menopause

Employers have a duty to protect the health and wellbeing of their workforces and not to act in a way which seriously undermines the implied duty of trust and confidence.  Further, discrimination on the grounds of age, sex, or disability (which are protected characteristics) is prohibited under the Equality Act 2010.  Claims for discrimination have potentially unlimited compensation.

Direct discrimination is deemed to have occurred when a worker is subject to less favourable treatment (including dismissal) because of a protected characteristic.  Indirect discrimination, on the other hand, can occur if a policy is applied to everyone but has the effect of putting those with a protected characteristic at a specific disadvantage.

Discrimination can also take the form of harassment and/or victimisation and, in the case of disability discrimination, can arise if the worker is treated less favourably because of something arising as a consequence of their disability, or a failure to make reasonable adjustments to accommodate it.

There is limited case law surrounding menopause transition in the UK, but those non-binding cases which do consider the issue have provided useful insights into the types of potential claims which can be successfully pursued at a tribunal.

Unfair dismissal and direct sex discrimination

The first case isMerchant vs British Telecoms Plc in which the tribunal agreed that Ms Merchant had been unfairly dismissed and direct sex discrimination had occurred when she was dismissed for poor performance.

In this case, Ms Merchant had been subject to underperformance procedures for a few years, culminating in a final warning. The performance issues persisted so a further performance process was commenced.  During a meeting to discuss the performance issues, Ms Merchant provided her manager with a letter from her doctor explaining that she was going through the menopause and that this was affecting her ability to concentrate.  She also referred to her menopause on several occasions during the meeting.

The manager, however, chose not to carry out any further investigation of her medical condition, in breach of the company’s performance management policy.  Instead, he made a judgment on Ms Merchant’s health and the impact on her ability to carry out her role by comparing it to what he knew of the menopause experiences of his wife and HR adviser, despite all women experiencing the menopause differently.

The tribunal held that the manager would never have adopted this “bizarre and irrational approach with other non-female-related conditions“.  A man with ill-health experiencing similar under-performance concerns would not have been treated in the same way and, consequently, the failure to refer Ms Merchant for medical investigation before making the decision to dismiss was directly discriminatory on the grounds of sex.

Disability related discrimination

The second case, Davies v Scottish Courts and Tribunals Service, found that Ms Davies had been unfairly dismissed and that her dismissal was because of something arising in consequence of her disability. 

Under the Equality Act 2010, in order for menopause to be considered a disability, it must have a substantial and long-term adverse effect on the individual’s ability to carry out day-to-day activities.  It, therefore, should not be assumed that all women going through the menopause will be protected; each case must be determined on its own facts.

In this case, however, Ms Davies suffered from heavy bleeding (requiring her to be near a bathroom to change her sanitary towel every 30 minutes), severe anaemia, memory loss and a “fuzzy” feeling.  Her employer recognised her disability and made reasonable adjustments for her.

In February 2017, Ms Davies began taking a medication which needed to be dissolved in water.  On the day in question, she was working in court and, upon returning from the lavatory, was concerned to note that her jug of water was being drunk by two members of the public.  She could not remember whether she had dissolved her medication in the water and so informed the two men that her medication had been dissolved in it.

Despite her condition making her flustered and forgetful, and her 20 years of unblemished service, Ms Davies was subsequently dismissed for gross misconduct on the grounds that she had knowingly misled the two men and management (she should have known the water would turn pink once the medication was in it), and that she had brought the court into disrepute.

In addition to being unfairly dismissed, the tribunal held that there was a clear link between Ms Davies’ dismissal and her conduct and that her conduct was affected by her disability. Whilst the tribunal accepted that the justification of having an honest and trustworthy staff member could be a legitimate aim, they could not accept that dismissal of Ms Davies was a proportionate means of achieving it.

Although not yet tested at tribunal, it is possible that claims for age discrimination may also be successful, on the basis that the menopause usually affects women of a certain age.

How to support female employees with peri-menopause and menopause

Failure to support women suffering from menopause can lead to Employment Tribunal claims.  These types of cases may increase as women become more confident about speaking out about their symptoms and subsequent negative treatment

The British Menopause Society (BMS) has issued guidance on how employers can support female staff through menopause.  Steps include:

• Raise awareness of menopause and its symptoms, especially in relation to line managers who are responsible for the health and wellbeing of their team.
• Set out guidance for line managers on how to conduct conversations around menopause with employees. It is especially important to realise that what works for one person may not be the right approach for another, as this is a highly sensitive matter for many suffers. 
• Health and safety handbooks and policies should be updated to include information regarding menopause.
• Implement support mechanisms within the workplace. This could be a named person in HR or just the occupational health team; each organisation will be different.  You may even have a named ‘menopause champion’.  The contact details for the support available should be made clear within the guidance.

In summary

The issue of menopause needs to come out of the shadows.  Given women’s increased life expectancy and the fact of working longer, it is imperative that workplaces change and adapt to support women during what may be a challenging time in their lives.  Not doing so raises the risk of claims and reputational damage to employers.

*Names have been changed.

If you have any questions regarding employment law matters, please do not hesitate to call us on 020 3828 0350.

BDBF is a leading and specialist employment law firm in the City of London.

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Employment Law News

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DIRECT DISCRIMINATION DUE TO “PERCEIVED” DISABILITY OF POLICE OFFICER

The Claimant, Mrs Coffey, applied to the Wiltshire Constabulary to become a police constable. However, a medical examination revealed that she suffered from some hearing loss. Following Home Office guidance, the Wiltshire Constabulary arranged for a practical functionality test, which she passed. This enabled Mrs Coffey to work as a constable (without any adjustments).

Mrs Coffey later applied to transfer to the Norfolk Constabulary, disclosing her hearing loss and providing a copy of the report from the functionality test and advised that no adjustments to her role had been necessary. She underwent a first medical, which recommended an “at work” test. Rather than provide this, the constabulary obtained a further medical opinion. The advice stated that Mrs Coffey would pass a practical test and a further ENT specialist reported that her hearing levels were stable. Despite this, the Acting Chief Inspector (ACI) rejected the application on the grounds that she did not meet the National Standards on hearing.

The Court of Appeal held that for claims of perceived disability discrimination, the alleged discriminator must believe that all elements in the statutory definition of disability were present although they did not have to attach the label “disability” to them. That was the case here even though in fact the employee was not disabled.

The Court concluded that the ACI had wrongly acted on the basis of a stereotypical assumption that Mrs Coffey’s hearing loss would render her incapable of performing front-line duties.

Chief Constable of Norfolk v Coffey [2019] EWCA Civ 1061

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Employment Law News

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RELIGION vs SEXUAL ORIENTATION

NHS Trust did not discriminate when removing Christian NED for speaking out against homosexuality and same-sex couple adoption

Mr Page, a practising Christian, was a non-executive director of an NHS Trust and a lay magistrate sitting in criminal and family courts. He participated in decisions involving adoptions.

In July 2014, Mr Page was part of a panel of Magistrates hearing a same-sex couple adoption application about a young child and he expressed his view to his fellow magistrates that it was his belief that it is always in the best interests of a child to be brought up by a mother and father, and that it was “not normal” to be adopted by a single parent or same-sex couple. His fellow Magistrates complained and Mr Page was subjected to disciplinary action. He subsequently gave an interview to the Mail on Sunday and took part in a radio phone-in.

Mr Page did not inform the Trust about the above. However, the Trust found out about his interviews after receiving a complaint and warned Mr Page that the public expression of his views could undermine confidence that he would exercise his judgment impartially and instructed him to inform it first of any further media interest.

Despite this, Mr Page decided to continue to give interviews to various media outlets, including on the BBC Breakfast News. As a result, he was removed from his magistracy in early 2016. However, Mr Page continued to participate in further media interviews live on ITV News and Good Morning Britain. He stated that homosexual activity was wrong and that he didn’t agree with same sex marriage. Mr Page was subsequently suspended by the Trust, which thereafter did not renew the term of his office as a NED.

Mr Page claimed direct and indirect discrimination against the Trust and argued that he had been removed from office because of his religious beliefs.

The Employment Appeal Tribunal dismissed the claim. It had been made clear that there were findings of non-discriminatory reasons for the treatment alleged. In any event, a suitable comparator would have been one who, for reasons unrelated to religious belief, spoke to the media against the Trust’s instructions and whose remarks would have been likely to have a negative effect on the Trust’s ability to serve the community in its catchment area. There was little doubt that such a comparator would have been treated in exactly the same way as Mr Page.

This case illustrates that the tension between religion and sexual orientation in discrimination claims continues. However, ultimately, Mr Page was not dismissed because he held the views that he held; it was the fact that he repeatedly contacted the media having been told repeatedly that he should not.

Page v NHS Trust Development Authority [2019] UKEAT/0183/18

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What Needs To Change To Ensure Women Can Progress In The Workplace?

The gender pay gap and women’s progression in the workplace, in general, seems to be an unsolvable puzzle.  Results from this year’s gender pay gap reporting show that, despite the government’s policy of naming and shaming employers (never the best motivator), the gap has not narrowed since 2018.

Gender pay reporting requirements were first introduced as part of the Equality Act 2010 and came into force in 2017.  All UK employers with 250 or more staff must report pay, bonuses and other data on 31 March (public sector entities) or 5 April (private employers) on the government’s gender pay website.

It was thought that the threat of having one’s organisation’s name published would encourage employers to take action to narrow the gender pay gap and encourage more women to be placed in higher company positions. However, the data shows that the pay gap persists in all 20 sectors of the economy, with none paying women more than men on average.

What is going on?  Have we reached an impasse on the gender pay issue?

“Lies, damned lies, and statistics“

The problem with reports is, they sometimes miss the big picture.  For example, take the Global Gender Gap Report 2018. Produced by the World Economic Forum, it provides a global snapshot of the gap between men and women across four fundamental categories (subindexes):  economic participation and opportunity, educational attainment, health and survival and political empowerment. 

Unsurprisingly, the top four countries in which women were most equal to men in these categories were the Nordic nations (Iceland, Norway, Sweden, and Finland respectively).  However, number five was Nicaragua, and Rwanda held the number six position.

Really?  In Nicaragua, incidentally, one of the poorest countries in the world, abortion is illegal.  And following President Daniel Ortega’s crackdown on demonstrations, many women and children have been plunged into poverty following the imprisonment or exile of their husbands and sons.

In Rwanda, 86% of women participate in the labour force, as opposed to 56% in the United States.  Rwandan women also enjoy one of the narrowest wage gaps in the world. However, this situation has come about because of the devastating genocide of 1994 which left females making up 60 to 70% of the population.

The Global Gender Gap is flawed because it compares women and men in the same country, rather than women in different places. For example, in Nicaragua, women are relatively equal to men in educational attainment.  But the country’s overall educational attainment for both sexes is poor by global standards.

The UK’s gender pay gap reporting is similarly flawed as it fails to examine the underlying reasons for women not matching men in pay and top positions.  Is it because they can’t or do many believe the cost of corporate/political success is too high?

It’s time to talk about the elephant in the room.

Women, career, and family

There are undoubtedly deep factors which hold women back from achieving their full potential.  Every time we think the battle is won, a Harvey Weinstein or Presidents Club situation comes along and shows just how far we still have to go to eliminate discrimination and harassment.  But what is not readily acknowledged is that the structure of work and school is no longer fit for the purposes of women succeeding in the fields of law, finance, medicine, and management.  These roles require long hours, extensive networking, and regular travel. 

Many women do not want to have their children brought up by a nanny or placed in daycare from 7am to 6pm, five days a week.

School hours remain the same as they did when many women stayed at home or participated in low-skilled, part-time work.  As for the summer holidays – this long break was designed to allow children to help with the harvest, something that is not applicable nowadays.

Our entire work and school hours culture is built for a way of life that no longer exists.

What are the real answers?

To close the gender pay gap and get more women into top positions, everything has to change.  Most employers are doing their utmost to support female employees, but there is only so far they can go and still retain the ability to generate the continuous growth our capitalist economic model demands.

In her legendary article “Why Women Still Can’t Have It All”, Anne-Marie Slaughter states:

“I still strongly believe that women can “have it all” (and that men can too). I believe that we can “have it all at the same time.” But not today, not with the way America’s economy and society are currently structured.”

She goes on to say:

“In short, the minute I found myself in a job that is typical for the vast majority of working women (and men), working long hours on someone else’s schedule, I could no longer be both the parent and the professional I wanted to be…”

Admitting she is stepping onto the treacherous ground of stereotyping, she boldly states:

“Still, the proposition that women can have high-powered careers as long as their husbands or partners are willing to share the parenting load equally (or disproportionately) assumes that most women will feel as comfortable as men do about being away from their children, as long as their partner is home with them. In my experience, that is simply not the case.  I’ve come to believe that men and women respond quite differently when problems at home force them to recognize that their absence is hurting a child, or at least that their presence would likely help. I do not believe fathers love their children any less than mothers do, but men do seem more likely to choose their job at a cost to their family, while women seem more likely to choose their family at a cost to their job.”

So, what are the answers? 

Ms Slaughter highlights key cultural aspects of working life that need to change to encourage more women to take on top positions. These include:

• Pressure to work long hours comes from the top, so managers have to “walk the talk” and leave the office at a reasonable time, not send emails after hours or when an employee is on holiday, and make it culturally acceptable to prioritise flexible hours to ensure school plays, sports days, bedtimes etc. are attended by parents. Cases for agile working need to be fairly evaluated, and requests granted if the argument is strong.
• Redefine the career arc. We are now living into our 80s, and increasingly many are reaching their 90s. Therefore, peaking in your late 40s is not compatible with today’s life expectancy.  Rather than see employees as washed out at 50, peak-career needs to be moved to this decade.  Say a woman has her first child at 35.  She is likely to have completed her education and achieved significant career goals by that time.  If she has another child at 37/38, by 57, her parental responsibilities will be complete. It is at this time, between 57-70, that, if she chooses, she can concentrate on demanding positions. However, under our present system, men, and women of this age are seen as old, stuffy, inflexible, and due for retirement (stereotypes that have no basis in reality). 
• Involve men. Men are participating far more in parenting than previous generations.  They are also demanding more balance in their work and home life.  Boys growing up today are receiving the message that ‘supporting your family’ means more than bringing home a generous wage.   When both sexes push for change, working cultures have no choice but to adapt. Organisations that don’t will lose talent to those that do.

Final words

Change happens slowly.  There are many other factors such as climate change and inequality that are throwing into light the flaws of the current economic systems we live under. It is time to change the workplace and school hours culture to reflect 2019 rather than 1959. There is only so much surface-level changes can achieve.  To bring about true gender equality in the workforce, our whole society must embrace a new way of working, living, and thinking.

BDBF is a specialist employment law firm based in the City of London.

Please contact our leading employment law team on 020 3828 0350.

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SEXUAL ORIENTATION DISCRIMINATION COULD BE INFERRED WHEN GAY HEADTEACHER WAS FOUND TO HAVE BEEN DISMISSED DURING A FLAWED DISCIPLINARY PROCESS

Mr Aplin was an openly gay headteacher at a primary school. He met two 17-year-old boys on the Grindr app and the three of them had consensual sex. The local authority investigated and found no criminal offence had taken place nor were there any child protection issues. However, the primary school conducted its own disciplinary investigation into whether:

1. The above conduct had brought the school into disrepute;
2. Whether Mr Aplin’s conduct outside of work had undermined his ability to fulfil his role; and
3. Whether he displayed a gross error of judgment such as to undermine the school’s confidence in him.

The investigating officer, Mr Gordon, found that child protection issues were, in fact, involved despite the local authority confirming that this was not the case. He provided various papers/evidence to the school governor panel, which Mr Aplin was not privy to, but which were connected to the local authority investigation. He took it upon himself to advise the panel, which was not his role, being a fact finder.

The school subsequently dismissed Mr Aplin who appealed the decision. During the appeal process, again, Mr Aplin was not provided with all of the evidence before the panel. He was also informed at a late stage that he could instruct a legal representative as the school was instructing a barrister. Mr Aplin, therefore, resigned claiming that flaws in the disciplinary process had amounted to constructive unfair dismissal.

Mr Aplin subsequently issued a claim in the employment tribunal for unfair dismissal and sexual orientation discrimination. The Employment Appeal Tribunal upheld the tribunal’s finding of constructive dismissal. The tribunal had held that the entire process was so flawed that it constituted a breach of trust and confidence. It was also held that the investigating officer displayed a striking lack of objectivity in approach when presenting the evidence and this demonstrated unconscious bias. There was sufficient material for an inference of sexual orientation discrimination to be drawn.

The Governing Body of Tywyn Primary School v Aplin UKEAT/0298/17

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The EAT has provided a helpful reminder that employers should give proper consideration to all possible alternatives before dismissing an employee for long-term sickness absence. Otherwise, employers may find that the dismissal is not only unfair, but discriminatory.

The Claimant, Dr Ali, had been on long-term sick leave after suffering a heart attack and was regarded as disabled for the purposes of the Equality Act 2010. Medical evidence shared that Dr Ali could return to work on a part-time basis but confirmed that it was unlikely that he would ever be able to work full-time again. Dr Ali was dismissed for capability reasons after the other doctors at his practice failed to consider him returning to work on a part-time basis.

The EAT found for Dr Ali, because there had not been any consideration of the possibility of part-time working.

Ali v Torrosian and others (t/a Bedford Hill Family Practice) UKEAT/0029/18

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The EAT has given guidance on how an employer should respond to numerous intermittent sickness absences of an employee with a disability.

The employee in this case, Mrs O’Connor, had a high number of sickness absences over a number of years. Her employer initially adopted a very careful approach and treated her with sensitivity by allowing her to have a higher sickness absence record than it would usually allow. However, once Mrs O’Connor’s absence levels hit 60 days in a 12-month period, it issued her with a written warning, the consequence of which was that her contractual sick pay ceased for future absences.

Mrs O’Connor brought a claim for discrimination arising from disability under the Equality Act 2010.

The EAT held that the employer’s decision to issue a warning was not justified, and was therefore discriminatory. Whilst ensuring appropriate attendance levels among staff was a legitimate aim, it was not proportionate of the employer to give Mrs O’Connor a warning. Not only could it not explain how the warning would assist matters, as Mrs O’Connor’s absences were genuine and caused by her disability, but it also failed to follow some of its procedures, such as referring her to occupational health.

DL Insurance Services Ltd v O’Connor UKEAT/0230/17

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The EAT has made clear that context is key to the determination of whether conduct amounts to harassment.

Not only does conduct have to be unwanted and humiliating in order to qualify as harassment, but it also has to be related to a protected characteristic. Determining whether that is so cannot be done in the abstract. The EAT in this case held that the Employment Tribunal had been entitled to consider conversations had before the allegedly harassing remark and to reach the conclusion that it had not been related to religion.

The facts of the case illustrate the importance of context. Mr Bakkali was a Muslim and had discussed with a colleague, Mr Cotter, a journalist’s report portraying IS fighters in a positive light. Later that month, Mr Cotter asked Mr Bakkali if he was “still supporting” IS. The Tribunal was satisfied on the facts that the reason Mr Cotter made this remark was the discussion they had previously, not because Mr Bakkali was a Muslim.

The EAT stated that the test for harassment (that the conduct be ‘related to’ the protected characteristic) is broader than the ‘because of’ test in direct discrimination, which warrants a close look at context in order to understand the motivation behind it.

Bakkali v Greater Manchester Buses (South) Ltd (t/a Stage Coach Manchester) UKEAT/1076/17

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