Focus on appearance makes employers unattractive

A jazz bar in London recently came under fire for posting a job advert looking for an “extremely attractive” employee. Predictably (and quite rightly), the internet reacted in protest against the wording of the advert.

Was the advert poorly phrased? Absolutely. Is the act of valuing the looks of an employee above skill morally acceptable? Not really. Was the advert illegal? Not directly, no.

Now, “not directly, no” is a bit of a non-answer. And that’s because a person’s looks and/or attractiveness is not protected under discrimination law in itself. By this, I mean that whilst you can be held to illegally discriminate against job candidates by refusing them the role due to a protected characteristic (the 9 characteristics listed later in this sentence), you wouldn’t illegally discriminate solely on the basis of judging by their looks unless your judgment on a job candidate’s looks was related to their race, gender, nationality, religion or belief, disability, pregnancy, sexual orientation, age or gender reassignment (which would then be discriminatory).

Myself? I can see a fairly easy age discrimination argument for any job candidate for that role who is refused the role, as it could foreseeably be argued that the employer has a stereotypical, ageist lean towards younger staff if they are judging on ‘attractiveness’.

But let’s step back from the legal side for a moment and look at the moral perspective. What we are looking at here is ‘lookism’ – i.e. the perception that a person’s looks mean they can’t perform the job (or perform it as well as others). The issue for employers should be the impression they give out by acting in this way – what they are basically saying is ‘we judge more on style than substance’ when, in reality, they should be saying the opposite. Put simply, it risks a PR disaster, particularly if their behaviour goes viral online.

Let’s look at an example linked to two job roles: one for an actress and one for a receptionist.

European Court of Justice gives OPINION on unpaid and untaken holidays

Does a worker’s holiday entitlement continue to accrue into successive years if they do not take their annual leave because their employer will not pay them for these holidays?

The Advocate General at the European Court of Justice (ECJ) has answered ‘yes’ to this question, in a non-binding opinion.

In the case of King v The Sash Window Workshop Ltd, the Claimant, Mr King (who was a self-employed salesperson), brought an Employment Tribunal (ET) claim against the Respondent, The Sash Window Workshop, on the basis that he felt he was owed monies for annual leave that he had accrued, but not taken.  In addition, the Claimant sought compensation for annual leave that he had taken, but not been paid for during the 13 years he had been working for the Respondent – his claim for holiday pay therefore amounted to over £27,000.00.  It is of note that the contract under which Mr King was employed, provided no right to paid annual leave and that this contract was terminated in 2012, on his 65th birthday.  The Claimant also submitted a claim for age discrimination.

The claim was initially heard by the ET in August 2013.  It was ruled at first instance that Mr King was to be deemed a worker for the purposes of the Working Time Regulations 1998, and also that his discrimination claim was well founded.

The Respondent subsequently appealed against the decision of the ET in respect of the holiday pay aspect of the claim, the Employment Appeal Tribunal (EAT) allowing the appeal and remitting the holiday claim back to the ET.  Mr King then submitted an appeal to the Court of Appeal who referred the case to the European Court of Justice (ECJ).

ECJ Advocate General Evgeni Tanchev, stated that employers had to provide “adequate facilities to workers” to enable them to take their paid annual leave.  Tanchev further stated:

“A worker, like Mr King, may rely on [EU law] to secure payment in lieu of untaken leave, when no facility has been made available by the employer, for exercise of the right to paid annual leave … Upon termination of the employment relationship a worker is entitled to an allowance in lieu of paid annual leave that has not been taken up.

“I appreciate that the answers to the questions referred I am here proposing would require employers rather than workers to take all the necessary steps to ascertain whether they are bound to create an adequate facility for the exercise of the right to paid annual leave, whether those steps be the taking of legal advice, consultation with relevant unions or seeking counsel from Member State bodies that are responsible for the enforcement of labour law.

“If an employer does not take such action, it will risk having to make a payment in lieu of unpaid leave on termination of the employment relationship. However, this would be in keeping with guaranteeing the effet utile of the right to paid annual leave, a fundamental right of substantive normative weight in Member State law, EU law, and international law, and would also be consistent with the practical reality, recognised in the Court’s case-law, of the worker’s position as the weaker party in the relationship.”

Is it discriminatory to exclude over 35s from police recruitment?

In the UK applicants for police recruitment have to be at least 18 years old. There is no upper age limit but the normal retirement age is 60. Eligibility requirements also cover such matters as nationality, criminal record, tattoos, financial status, physical fitness, health and eyesight.

In Gorka Salaberria Sorondo v Academia Vasca de Policia y Emergencias the European Court of Justice (CJEU) was asked to consider whether an age limit of 35 for a competition for recruitment to the Basque Police was discriminatory on the ground of age. Mr Sorondo brought proceedings in the Spanish High Court concerning the decision of the Director-General of the Basque Police and Emergency Services Academy, objecting to the conditions for participation in the competition and, in particular, the requirement of candidates to be under 35 years old. He was over 35 and claimed that there was no justification for the age limit imposed.

Local legislation provided as follows:
A candidate for recruitment as a police officer must be aged 18 or over and under 35. However, with respect to recruitment to local forces, the upper age limit may be revised taking into account services provided within the local administration, in the local police forces.
The High Court referred the question to the CJEU, noting as it did so that there was a previous ruling that an upper age of 32 years for the recruitment of Basque police officers complied with the requirements of proportionality and that a similar decision permitted a limit of 30 years for intermediate career posts in a fire service.

Age Discrimination & Permanent Health Insurance

Since the abolition of the default retirement age some time ago, questions have arisen regarding what happens to employee benefits should they decide to remain in employment over a certain age.

In the recent case of Smith v Gartner UK Ltd, Ms Smith (the Claimant) was absent from work on the grounds of sickness and had been receiving payments under Gartner UK Ltd’s (the Respondent) Permanent Health Insurance (PHI) scheme during this time.  In line with the terms of the PHI policy that the Claimant had originally signed up to in 2003, these payments were stopped when the Claimant reached the age of 60.

Of further note is the fact that the Respondents had in fact introduced a new PHI scheme in 2007 which provided employees with cover until the age of 65.

In response to the cessation of her benefits, the Claimant brought a claim for direct age discrimination against the Respondents, arguing that by not continuing the payments beyond the age of 60 they had treated her less favourably as a result of her age and could not justify this decision.

Ms Smith’s claim was rejected by the Employment Tribunal and she subsequently appealed to the Employment Appeal Tribunal (EAT) who rejected her appeal on the basis that the reason her payments ceased at the age of 60 was purely because the terms of the policy she had signed up to dictated that this be the case.  This was therefore not a decision made by the Respondent and as such could not be deemed an act of discrimination.

The EAT further decided that the Respondent’s decision not to extend the benefits of the PHI policy introduced in 2007, could similarly not be deemed discriminatory.  As the Claimant was already receiving benefits under the old PHI policy and was not actively working, she did not satisfy the conditions of the new scheme.

In light of the above, Employers could be advised that they are not under an obligation to offer additional benefits in excess of PHI schemes simply to avoid discrimination claims and that cases such as these may very much depend upon the terms of the PHI policy in question.  It should also be noted that the Equality Act 2010 does allow Employers to cease offering PHI in addition to other insured benefits, at the age of 65 or the employee’s state pension age (whichever is the higher).

Beware however that this area of the law may well be subject to change in the future given the very different decision reached by the Employment Tribunal in 2013 in the case of Witham v Capita Insurance Services Ltd.

Exclusion from voluntary redundancy of director aged over 50 was discriminatory

Mr Donkor was born in 1960 and started his employment with the Royal Bank of Scotland in 1978. He worked through the ranks and, from 2003, was employed as a regional director in retail banking. In 2012 there was a bank restructure which effectively meant that all existing regional directors would have to go through a selection exercise. Following a “desktop exercise” those not selected for interview would be given an options letter, allowing them to volunteer for redundancy. Those aged over 50 would also be given the option of early retirement.

Mr Donkor and three others were not offered an interview. He was one of two of the four over 50. However, when severance costs were calculated it was apparent that out of a total cost if £1.4m, £1.25m would be accounted for by the two employees aged over 50. In Mr Donkor’s case the overall cost would be £552,286.87, including a pension contribution of £460,275. The Bank reviewed the process and offered interviews to those who were initially successful. the result was that one of the four was successful. Mr Donkor was not. the value of Mr Donkor’s proposed settlement required approval at a higher level. While this process was ongoing the two other employees, both under 50, were given letters inviting them to apply for redundancy or redeployment. Mr Donkor was not sent such a letter.

In May 2012 an alternative role became available. He and Mr Batey (one of the employees under 50) were considered to be suitable candidates. Mr Donkor was notified accordingly and asked whether redundancy options were available. He was told that they were not since there was a suitable alternative role. He was offered and accepted the role before the selection exercise concerning him and Mr Batey was conducted. He remained in post until a further unrelated restructuring in 2013. In the meantime the bank changed its pension rules so that the minimum age at which volunteers for redundancy could apply for early redundancy was raised from 50 to 55. Within the 2013 restructure he was permitted to apply for voluntary redundancy and his employment terminated in September 2013.

He brought a claim of age discrimination on the basis that in the 2012 exercise he was not given the option of voluntary redundancy whereas comparable employees aged under 50 were. At the Employment Tribunal it was held that the employees aged under 50 were not appropriate comparators because they could not apply for voluntary early retirement. Alternatively, bearing in mind that Mr Donkor was not offered the option of voluntary early retirement so they were all treated in the same way. Further, even if there was less favourable treatment the reasons were the considerably higher cost and the likelihood that such a package would not be approved when there was suitable alternative employment. Accordingly, his claim failed. However, on appeal the Employment Appeal Tribunal disagreed with the Employment Tribunal and noted that the ET “lost its way when it came to this particular aspect of the direct age discrimination claim before it”.

Can a limited company be a victim of discrimination?

An important but potentially confusing aspect of English law is the concept of the “legal person”. As well as individuals a limited company is a legal person in the sense that it has its own legal status. It can be a claimant or defendant in proceedings and can enter into contracts, whereas the position with a partnership (a collection of individual persons trading together) is more nebulous.

Perhaps the obvious reaction when considering whether a company can be a victim of discrimination is to say that it cannot since discrimination is specific to a human being who can, for example, suffer injury to feelings. However, as confirmed in the case of EAD Solicitors LLP and others v Abrams the legal answer is not so straightforward.

Mr Garry Abrams was formerly a partner/member in EAD Solicitors LLP, based in Liverpool. Indeed, the firm was previously known as Edwards Abrams Doherty. As he approached retirement Mr Abrams set up a limited company in which he was the sole director. The company replaced him as a member of the LLP. It was, for all intents and purposes, a service company which provided the services of Mr Abrams and was, in return, entitled to share in the profits of the LLP.

There was no obligation requiring personal service and therefore no employment relationship. The LLP objected to the company providing Mr Abrams’ services once he reached the age when, had he been a member of the LLP, he would have retired. There was an ongoing dispute about whether the company remains a member of the LLP notwithstanding the claim and that apparently remains unresolved.

Part 5 of the Equality Act 2010 provides that an LLP (limited liability partnership) must not discriminate against a member as to the terms on which he is a member, by expelling him, or by subjecting him to any other detriment. Section 4 of the Limited Liability Partnership Act 2000 provides that a corporate body may be a member of an LLP. This is therefore the legal basis on which a corporate LLP member does, on the face of it at least, enjoy protection from discrimination. Any such claims must be brought before an employment tribunal (section 120 Equality Act).

In the Employment Tribunal Employment Judge Ryan clearly struggled with the concept of a company being a victim of discrimination because it is so intensely personal. However, he was persuaded by the legal argument that it could. President of the Employment Appeal Tribunal Mr Justice Langstaff agreed.

the mental processes of decision influencers that can lead to age discrimination

In Reynolds v CLFIS (UK) Limited Mr Justice Singh, sitting in the Employment Appeal Tribunal, considered the motivations of individuals, conscious or subconscious, that can lead to discrimination.

Dr Reynolds OBE was employed by Canada Life from 1968 to 1992 as a doctor and insurance expert and, latterly, as the Company’s chief medical officer. In 1992 she was made redundant but continued working on a consultancy basis. However in 2010 the consultancy agreement was terminated by Canada Life. A Mr McMillan had made a presentation to Mr Ian Gilmour, the Company’s most senior employee in the UK. As a result of the presentation Mr Gilmour decided that Dr Reynolds was not delivering the service required and could not remain in her post as chief medical officer. Following discussions between others including the HR manager it was decided that a clean break was required by dispensing with her services altogether.

Dr Reynolds believed that the decision was prompted by age discrimination. At the date of termination she was 73 years old and had worked for Canada Life for 42 years. At the resulting employment tribunal hearing all attention focused on the mindset of the person who took the decision to dismiss. The claim failed and Dr Reynolds appealed on the basis that analysis of the decision to dismiss should not have been confined only to the person who ostensibly took the decision.

On appeal it was acknowledged that the decision to terminate the contract “had been shaped and informed by the views of other persons, in particular a presentation given to the eventual decision-maker”, Mr Gilmour. Accordingly it was necessary to consider the mental processes in the context of age bias not just of Mr Gilmour but also others in the organisation whose views might have had a significant influence on the decision.

the unrepresented claimant who knew too much

Employment tribunals, being creatures of statute, have had an unhappy history when it comes to considering time limits and balancing adherence to them with general principles of fairness.

As all those with experience of unfair dismissal claims will know, there is a strict time limit of three months for commencement of proceedings. The time limit will only be extended if it was not reasonably practicable for the claim to be lodged in time and what is “not reasonably practicable” has been very narrowly construed.

On the face of it there is a more relaxed approach to discrimination claims since the test for ostensibly out of time claims is not whether it was reasonably practicable for the claims to be presented but whether it is “just and equitable” to allow them to proceed.

Back in 2009 I wrote about the application of time limits in the context of an unfair dismissal claim resulting from redundancy and the unusual circumstances in which an apparently out of time claim was allowed to proceed. I have also commented previously about the apparent injustice of excluding good claims in a tribunal (supposedly less formal than a court) based on a procedural error.

In courts, where by contrast the vast majority of claims are subject to generous time limits of three years for personal injury claims and six years for other claims, there has been a recent clampdown on procedural mistakes with the result that numerous decent claims have been unable to proceed based on highly technical objections. I wrote a post earlier this year in which I made clear my disapproval of this trend.

So to the case in question. In Hall v ADP Dealer Services Limited the Employment Appeal Tribunal was asked to consider whether a tribunal was right to dismiss claims for age discrimination on the basis that they were time barred and it was not just and equitable to extend time. Ms Hall was employed by ADP from July 2011 to February 2012 as a compensation manager. On 30 November 2012 she submitted a claim against her former employer alleging age discrimination. Her complaints included that she had no probationary review, that she was subjected to age discriminatory behaviour at work including a derogatory, age-related comment, that she was dismissed because, so she was told, it was “not working out” and that she was given misleading references, the last of which was issued in July 2012. Ms Hall knew that her claim was, prima facie, out of time because she included in her application:

PLEASE NOTE: I know that a straightforward claim for age discrimination would be out of time but due to circumstances outlined in 9.1 and 10 below I feel it would be just and equitable to extend the time and I am therefore with great respect requesting this.

When she complained about the references she was told to raise a grievance. She duly did so and the grievance process continued until 19 September. At the employment tribunal the former employer contended that the dismissal, the references and the grievance process were discrete events rather than continuing acts. The distinction is important since, if they were discrete acts, each would be considered in isolation with reference to the applicable time limit for commencing proceedings. If they were continuing acts then time would be calculated as running from the last such act. The tribunal took the view that they were separate acts. It was not just and equitable to extend the time limit for the dismissal claim because Ms Hall could have brought her claim much earlier “as she had the knowledge, the expertise, and the ability to bring the claim”.

is reward for long service age discriminatory?

Lockwood v Department of Work and Pensions & Anor is an illustration of how a directly discriminatory redundancy scheme can be justified. Under the Civil Service Compensation Scheme, introduced in 1987, redundancy payments are weighted in favour of older workers. Specifically, workers taking voluntary redundancy were entitled to one month’s pay for each year of service, plus the lesser of:
(i) one month’s pay for each year of service given after 5 years of service;
(ii) one month’s pay for each year of service given after the employee’s 30th birthday, plus
(iii) one month’s pay for each year of service after the age of 35
Ms Lockwood, aged 26 at the time of her redundancy, made a claim of age discrimination. In the Employment Tribunal it was held that the scheme was not age discrimination, and that if it was, it would be justified, and the Employment Appeal Tribunal upheld that conclusion. She appealed to the Court of Appeal.
The Court of Appeal considered two issues – was the Employment Tribunal right that there had been no age discrimination – and if they were wrong about that, were they right in their alternative conclusion that such discrimination was justified?
The Employment Tribunal had been mistaken in finding that because a 26 year old would have less need for a redundancy payment than an older worker she had not suffered less favourable treatment.

McCririck age discrimination case fails

On 13 November the Central London Employment Tribunal handed down its reserved decision in the case of McCririck v Channel 4 Television Corporation and IMG Media Limited. Given the celebrity status of the Claimant the case attracted a good deal of attention. IMG took over the contract to broadcast all terrestrial coverage of horse racing commencing 1 January 2013. In doing so it displaced the incumbent, Highflyer, for whom McCririck had worked since 1996 and previously with Channel 4 since 1984. As part of its pitch for the contract IMG said that they wanted to introduce a more analytical and journalistic approach to coverage. However IMG management, and former BBC employee Carl Hicks in particular, took the view that Mr McCririck did not fit the brief. Ultimately the Tribunal agreed and held in its judgment:
Mr McCririck was dismissed because of his persona emanating from his appearances from celebrity television shows, and the associated press articles resulting from them, together with his appearances as a broadcaster on Channel 4 Racing where, as he accepted, his style of dress, attitudes, opinions and tic tac gestures were not in keeping with the new aims, and his opinions seen as arrogant and confrontational…
All the evidence is that Mr McCririck’s pantomime persona, as demonstrated on the celebrity television appearances, and his persona when appearing on Channel 4 Racing, together with his self-described bigoted and male chauvinist views were clearly unpalatable to a wider potential audience. The tribunal is satisfied that the respondent had the legitimate aim of attracting a wider audience to horseracing.

However Mr McCririck claimed in evidence that, particularly in his appearances elsewhere, such as on Celebrity Big Brother, he was adopting a “pantomime persona” that was positively encouraged by Channel 4 executives so that, in effect, they could not have it both ways.
The judgment provides an extraordinary insight into the details of a tender for a significant television sports contract. Much of the narrative is of great interest to a racing fan such as me. From a legal perspective the detail is light on the application of the law to the facts. It is significant that, although barely noted in mainstream reporting, since all those whose contracts were not renewed were over 50, the onus shifted from Mr McCririck to Channel 4 and IMG. Instead of the claimant establishing that there was age discrimination, the respondents had to show that there was not. An unsatisfactory aspect of the decision is that there is no analysis of this aspect and it seems to be assumed that there was age discrimination. However, that discrimination was justified because the approach adopted was a proportionate means of achieving a legitimate aim, namely extending the appeal of horseracing to a wider audience.