extension of flexible working rights

Posted on September 26, 2011 by Martin Malone

The Government has made clear for some time its intention to extend the right to request flexible working to most employees rather than just those who having caring responsibilities.

In September 2010 the Department for Business Innovation and Skills announced an intention to extend flexible working rights to all parents of children under 18 from April 2011 (covering a further 300,000 employees) and plans to roll out the rights to all employees. Extension of the rights would be accompanied with a new and simplified system for requesting parental leave.

However the April 2011 change was postponed. The reason given by the Government was the economic climate but it was made clear that the widening of entitlement remained firmly on its agenda (in accordance with the Coalition Agreement). Continue reading →

religious discrimination

Posted on August 14, 2011 by Martin Malone

It seems that the Equality and Human Rights Commission agrees with the many Christians who believe that courts and tribunals “have interpreted the law too narrowly in religion or belief discrimination claims”.

In a Press Release issued on 11 July 2011 the Commission says that it is concerned that “rulings already made by UK and European courts have created a body of confusing and contradictory case law. For example, some Christians wanting to display religious symbols in the workplace have lost their legal claim so are not allowed to wear a cross, while others have been allowed to after reaching a compromise with their employer”. The Commission is at pains to point out that it is not supporting only Christians in this context – one example it gives is that of a Jew who asks not to have to work on a Saturday for religious reasons. Continue reading →

Harrods: female employees must wear “full makeup” and even visitors must observe the “dress code”

Posted on July 25, 2011 by Martin Malone

In 2011 the extraordinary and surely outdated dress codes operated by Harrods department store have been highlighted by a complaint brought by former employee Melanie Stark.

As reported in The Guardian Ms Stark, who worked not in the makeup department but in the HMV franchise, was told that she must wear “full makeup” including lipliner, lipstick and lipgloss, as well as “base and full eyes”. Continue reading →

Equality Act 2010 – new April items

Posted on April 17, 2011 by Martin Malone

As is well known, the Equality Act 2010 replaced the vast majority of British anti-discrimination laws with one single statute on 1 October 2010. Not all parts of the Act came into force on 1 October 2010 and 6 April 2011 is the start date for three significant related items:
1. Positive action (Equality Act 2010 s.159)
2. Public Authority duties (Equality Act s.149)
3. Codes of Practice issued by the Equality and Human Rights Commission

Positive action. As from 6 April 2011 it is lawful for an employer to take any of the nine “protected characteristics” (sex, race, religion, sexual orientation etc.) into account in selecting to whom to offer a post, whether recruitment of a new job applicant or promotion of an existing employee, if the candidates are each as qualified as the other(s) and people having the same protected characteristic are under-represented in the employer’s workforce. Any action taken must be a proportionate means of addressing such under-representation.

The official explanatory notes to Equality Act 2010 explain that “The question of whether one person is as qualified as another is not a matter only of academic qualification, but rather a judgement based on the criteria the employer uses to establish who is best for the job which could include matters such as suitability, competence and professional performance”.

Positive action in favour of someone is not the same as positive discrimination in their favour (which generally remains unlawful after 6 April if it is because of a protected characteristic simply because it generally involves unlawful discrimination against someone else). Thus simply offering a job to a woman because women are underrepresented in the company’s workforce when a male candidate is better qualified is not lawful. Similarly offering the job to a woman who has the same qualifications as a male candidate is not lawful if women are adequately represented in the workforce. Those both remain, as previously, unlawful direct discrimination.

Employers should remember that they may need to justify any positive action if an unsuccessful candidate sues. Also it is worth noting that “positive action” of the sort noted above is not compulsory, unlike the duty imposed on employers to make “reasonable adjustments” in favour of employees who suffer from a disability, which can clearly amount in a rather different sense to taking positive action.

The Public Sector Equality Duty. This is a statutory duty on public bodies and others carrying out public functions which came into force on 6 April 2011. The intention is that it will “embed equality considerations into the day to day work of public bodies, so that they tackle discrimination and inequality and contribute to making society fairer”.

Codes of Practice. The Equality Act Code of Practice on Employment and the Code of Practice on Equal Pay, both prepared by the Equality and Human Rights Commission, also came into effect on 6 April 2011. According to the EHRC:

“The purpose of these Codes of Practice is to explain the new statutory provisions of the Equality Act. The Codes will help to ensure that the law is applied consistently by lower courts and tribunals. They will also help make the law accessible to a wider audience, such as those who have obligations and those who have rights – or their representatives. The Codes set out clearly and precisely what the legislation means. They draw on precedent and case law and explain the implications of every clause in technical terms. These statutory codes are the authoritative source of advice for anyone who wants a rigorous analysis of the legislation’s detail. For lawyers, advocates and human resources experts in particular, they will be invaluable”.

It is relevant to point out that the coalition government has announced that three other measures previously due to be introduced on 6 April 2011 under Equality Act 2010 are postponed or cancelled. These are the provisions for what was called the Equality Act Socio-economic duty (scrapped, as announced in November 2010); the rather technical provisions allowing claims for “dual discrimination” (postponed, possibly indefinitely, as announced in March 2011) and the provision under which employers would be liable for harassment of their employees by third parties if they “failed to take such steps as would have been reasonably practicable to prevent the third party from doing so”.

Dismissal for religious belief or how that belief is manifested?

Posted on January 26, 2011 by Martin Malone

The Equality (Religion and Belief) Regulations 2003 (now part of the Equality Act 2010) were introduced, as the name suggests, to protect against discrimination on the grounds of religion or a belief system.

In Power -v- Greater Manchester Police Authority the Employment Appeal Tribunal considered the dismissal of Mr Power, a committed spiritualist, who worked as a Special Constabulary Trainer. Shortly after he started his job his employers discovered that police officers had complained that, in his previous work, he had been disruptive and unhelpful on training courses and that he had been distributing CDs and posters about spiritualism.

He was called to a meeting with an HR manager following which he received a letter notifying him that his employment was terminated with immediate effect. The letter included the following:

Information has come to light regarding previous work with Neighbouring Forces and your current work in the psychic field which is not compatible with employment in Greater Manchester Police. I can confirm that if this information had been made available to us prior to you joining the force as a member of police staff, we would not have offered you employment.”

Mr Power presented a complaint of discrimination to an employment tribunal and lost. The tribunal found that he was dismissed not because of the beliefs he held but because his previous conduct showed that he was unsuitable to train police officers and the distribution of the CDs and posters, although related to his beliefs, was an unacceptable way of expressing those beliefs. Incidentally, it is interesting to note that this is not quite what the letter of dismissal says as shown above. However, when he appealed against his dismissal he was told that the phrase “work in the psychic field” referred not to the belief held by him “but on the basis that the material [distributed] was inappropriate”. The distinction is critical because, on appeal, the EAT agreed with the employment tribunal and confirmed that Mr Power was dismissed, not because he was a spiritualist and did work in the psychic field, but because of how he manifested his beliefs by distributing the material.

Did it make any difference that the belief in question was spiritualism? That issue is not addressed in the decision but it would be interesting to see how the activities of an evangelical Christian might be regarded in similar circumstances. Such an individual would be expected, as part of his or her belief, to “spread the word” with a view to encouraging people, presumably including those encountered in the workplace, to become fellow evangelical Christians. The word evangelism is derived from the Greek words to announce good news, bring a good message or preach the Gospel.

Yet again the application of the Regulations (now within the Act) brings with it the uncomfortable overlap between moral questions, including those concerning freedom of expression of faith, and application of the law in a largely secular society.

Associative discrimination – when a “gay pub” becomes a “gastropub”

Posted on January 23, 2011 by Martin Malone

In Lisboa -v- Realpubs Limited and others the Employment Appeal Tribunal was asked to consider whether the employer’s policy of encouraging a wider clientele at what was previously recognised as a gay pub led to less favourable treatment of gay customers which in turn caused Mr Lisboa to resign in circumstances amounting to discriminatory constructive and wrongful dismissal. Although the case was decided on the basis of the legislation which applied prior to the implementation of the Equality Act 2010 the principles remain relevant.

The Coleherne pub in Earls Court was known as London’s first “gay pub”. However, by 2008 the pub was in decline and it was bought out by Realpubs Limited which had a reputation for reinventing failing pubs as gastropubs, offering high quality food and drink to all sections of the community. It was renamed as the Pembroke Arms. Mr Lisboa, an openly gay Brazilian man was recruited as assistant manager of the new Pembroke Arms. His employment lasted for 42 days (from 1/12/08 to 11/1/09). In his second week of employment he was instructed to put up a board outside the pub saying “this is not a gay pub”. He refused and instead put up a notice saying “under new management – friendly staff”. In an email sent on 8 December a director said that they were making sure that people knew that it was no longer an exclusively gay pub and that they were barring “over the top” old customers but this needed “to be done right!!”. Staff were encouraged to seat customers who did not appear to be gay in prominent places so they could be seen from outside the pub. The employer also took steps to achieve its policy of having an even balance between the sexes in the staff working at the pub.

The repositioning policy apparently failed since the tribunal found that the clientele both before and after the re-launch remained at 90% gay.

The pub manager resigned on 30 December and Mr Lisboa decided to resign on the same day. A director tried to persuade him to stay and said that if he was resigning because of the “gay issue” he was sorry if he had not expressed himself properly on that issue. Mr Lisboa confirmed his resignation on 11 January. He brought claims of common law constructive dismissal and discrimination under the Sexual Orientation Regulations, alleging comments directed at him concerning his sexual orientation and a course of conduct by the employer under which he was put under pressure to work in a way which made the pub less welcoming to gay customers than to straight customers.

The tribunal found that there were examples of direct discrimination but rejected the claim based on the trading policy on the basis that Realpubs were operating on the basis of a legitimate commercial objective. It found that nothing was done to make the pub unwelcoming to gay customers in general or less welcoming to gay customers than other patrons.

The EAT identified the key issue in this regard as whether the repositioning of the pub went too far in embracing a policy of putting pressure on gay customers or taking negative steps which made the pub less welcoming to gay customers. The tribunal focused on the commercial objective of Realpubs but the EAT took the view it should have made a judgment about whether the wider factual matrix resulted in the old gay clientele being treated less favourable than the desired straight/family customer base on the grounds of their sexual orientation. Based on the facts that was “plainly and unarguably” the case. It followed that Realpubs was operating a policy which discriminated against gay customers so that Mr Lisboa’s reason for resigning was prompted by unlawful discrimination against customers. This was sufficient to constitute a repudiatory breach of the contract of employment on which to base the claim for constructive dismissal. The result is that the EAT reversed the decisions concerning associative discrimination and constructive dismissal and remitted the case to another employment tribunal to determine the amount of compensation payable to Mr Lisboa.

In response to the decision Realpubs said it respects all members of its team and welcomes all customers. It is considering an appeal. Although the law concerning discrimination based on working conditions and environment is fairly well established the case provides an interesting demonstration of how an ostensibly well-intentioned employer can nonetheless fall foul of laws designed to protect against discrimination in circumstances in which its general policies and practice can lead to claims by individual employees.

Equality Act – positive discrimination

Posted on January 23, 2011 by Martin Malone

On Sunday 23 January the Daily Mail published an article under the heading “Equality Madness” in which it said that the government is spending tens of millions of pounds in order to comply with the terms of the Equality Act 2010. Examples referred to include £100,000 spent on a DEFRA report investigating how efforts to boost Britain’s coastal fish stocks would affect minority communities including the Chinese, homosexuals and Welsh speakers and a leadership course for NHS managers designed for gay, lesbian, bisexual and transsexual employees.

While the wider debate on such matters will no doubt continue, employers need to be alert to the changes which impact on workplace arrangements and potential issues arising in an employment law context.

In early December 2010 equalities minister Lynne Featherstone made a speech in which she announced that employers will be able to take “positive action” to achieve a more balanced workforce by giving jobs to people from ethnic minorities, homosexuals and people with disabilities. Companies which fail to promote a fairer deal for women could be “named and shamed”. She indicated that leading companies would be required to promote more women to board level and that there may be a requirement to disclose salaries with a view to identifying pay gaps if the information is not provided voluntarily. Details of the strategy can be viewed here.

The aspirations set out in the strategy have now crystallised in the form of implementation of new provisions in the Equality Act 2010 which will come into force on 6 April 2011. On 12 January the government published Guidance for Employers on how changes to allow “positive action” will be allowed as a result of the changes. Examples include steps to women-only development programmes with a view to increasing the number of women managers, appointing a woman ahead of a man if two candidates for a post “could do the job equally well” and appointing a Muslim candidate ahead of a non-Muslim candidate “of equal merit” if the workforce has an under-representation of Muslims in an area with a high Muslim population. These changes to current provisions will be achieved by effectively preventing the unsuccessful candidate from making a claim in such circumstances.

However, employers must “reasonably think” that people with a protected characteristic are under-represented in the workforce, or suffer a disadvantage connected to that protected characteristic. There must be some form of documented record to demonstrate that this thought process has been applied. The guidance suggests:

“Some information or evidence will be required to indicate to the employer that one of those conditions exists – but it does not need to be sophisticated statistical data or research. It may simply involve an employer looking at the profiles of their workforce and/or making enquiries of other comparable employers in the area or sector as a whole. Additionally,it could involve looking at national data such as labour force surveys for a national or local picture of the work situation for particular groups who share a protected characteristic. A decision could be based on qualitative evidence which may be obtained in various ways, for instance through discussion with workers or their representatives.”

Another important development in April is the introduction of the new “equality duty” for public sector employers and employers who rely on public sector funding. More specifically the equality duty is a duty on public bodies and others carrying out public functions. Its aim is to embed equality considerations into the day to day work of public bodies, so that they tackle discrimination and inequality and contribute to making society fairer. The general duty requires such employers to have “due regard” to the need to eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Equality Act 2010; advance equality of opportunity between people from different groups; and foster good relations between people from different groups. Detailed guidance is available here.

newsletter – phoney discrimination claims

Posted on December 20, 2010 by Martin Malone

One of the problems with anti-discrimination law is that it sometimes results in “phoney claims”. The problem must, of course, be kept in perspective and overall the fact that the law is sometimes abused is a small price to pay for the valuable protections it affords to genuine victims.

The problems of phoney claims generally centre around job applications. At one time there were quite frequent newspaper reports of people with African or Asian names putting in two applications for the same job, identical in all respects except for the name. Typically the applicant would use a very anglo-saxon sounding name in one application and his real name in another. When the phoney anglo-saxon got invited to an interview but the real person did not, the real one would threatened to sue on the basis that the only reason for his not having been invited for interview must have been his race. Employers would be tempted to pay a few hundred pounds to get rid of the nuisance even if a tribunal would be unlikely to make an award if it was aware of the facts.

We haven’t heard much of that particular scam recently (no doubt many employers now have systems in place which weed out phoney “dual applications”). Instead a new version of the same scam has appeared, this time making use of anti age discrimination law.

This “age-discrimination” version is a little more subtle than the “race discrimination” variety as there are no relatively easy to spot double job applications. Instead an older job applicant applies for a job which is clearly most suitable for a young person and stresses his age in the application. If he is not invited for an interview he may claim, or threaten to claim, unlawful age discrimination. If the case goes to a tribunal and the tribunal is persuaded that the applicant never genuinely intended to take the job, the scamster is unlikely to get far. He will not have have suffered a detriment and so will not succeed in a discrimination claim (an example was an EAT case almost exactly a year ago – Keane v Investigo & ors).

In another case a Mr Berry, a man in his mid-50s, brought at least four sets of proceedings in the London (Central) Employment Tribunal claiming that job advertisements breached the (now-replaced) Employment Equality (Age) Regulations 2006 because words such as “recent graduate” or “school leaver” suggested that they were aimed at younger people. Mr Berry never actually applied for the jobs in question but nonetheless brought claims to an employment tribunal. He did so largely in reliance on a 2008 ruling by the European Court of Justice in which that court held that “Public statements by which an employer lets it be known that under its recruitment policy it will not recruit any employees of a certain ethnic or racial origin are sufficient for a presumption of the existence of a recruitment policy which is directly discriminatory…”. Mr Berry claimed in effect that what was sauce for the goose (EU immigrants) should also be sauce for the gander (British people of a certain age) and therefore that this 2008 ECJ ruling meant he had legal rights. He also claimed for good measure that the job advertisements breached his rights under the European Convention on Human Rights.

He lost his claims in the tribunal and, perhaps surprisingly, decided to appeal. In October 2010, Underhill J in the Employment Appeal Tribunal had no trouble in dismissing his appeals, stressing not only that the legislation is not designed to provide income for people who “complain of arguably discriminatory advertisements for job vacancies which they have in fact no wish or intention to fill” but also that those who did so are likely to be liable for costs.

While the cases show that employment tribunals will not support scamsters, notably job applicants and others who have no intention of taking up advertised jobs, the fact remains that in practice such claims can be a nuisance. Only too often it can be less costly and more convenient for an employer simply to pay off a potential claimant rather than fight a case. Notwithstanding the suggestion noted above by Mr Justice Underhill that an unmeritorious claimant is likely to be liable for costs, there is no certainty of a costs order being made and, even if it is, in practice there is no certainly of being able to enforce it against the scamster. The government’s plan to abolish the 65 so called “default retirement age” (see the previous item) will do nothing to help. However other government plans may – there are rumours that the official review of employment laws currently under way will consider recommending that more claimants should be required to put up some form of cash security before being allowed to bring cases to an employment tribunal. If so, this would no doubt deter at least some phoney claimants.

The moral for employers and especially employment agencies is that great care should be taken to ensure that job advertisements avoid use of any words, phrases or images which could suggest that a job is only suitable for people of a particular age unless they are quite sure that such a requirement can be justified as a “proportionate means to achieve a legitimate aim” (to quote the wording used in the relevant legislation). In any case of doubt you should contact us for advice.

newsletter – discrimination: religion or belief

Posted on December 20, 2010 by Martin Malone

Along with the rest of British anti-discrimination law the Employment Equality (Religion or Belief) Regulations 2003 were replaced by the Equality Act 2010 with effect from 1 October 2010. Reflecting changes originally made in 2007, the new wording ensures that any philosophical belief is covered whether or not it is “similar” to a religious belief.

This has recently produced some interesting discussion (and litigation).

The Employment Appeal Tribunal confirmed in October that there is an important distinction between “a person’s beliefs” and “manifestation of those beliefs”. In the case in question a spiritualist policeman employed as a Special Constabulary Trainer had a genuine belief that psychics could help solve criminal investigations. He distributed CDs and posters relating to spiritualism. Greater Manchester Police, for whom he worked, dismissed him, saying that his “work in the psychic field” was incompatible with his employment by them. He brought a discrimination claim against the Police but lost before an employment tribunal and again on appeal to the EAT on the basis that the protection provided by the law is simply against detrimental treatment because of “belief”. The EAT held that in this case the detrimental treatment (dismissal) was not because of the belief but was because of the way that belief was manifested, which is not protected (Power v Greater Manchester Police Authority, EAT on 8th October 2010).

The distinction between “belief” and “manifestation of belief” is a fine one. In other circumstances it would be interesting to consider whether the wearing of a Burka by a Muslim woman at work would count as an integral part of her “belief” (protected by the law) or as a “manifestation of her belief” (unprotected).

Other cases have concentrated on whether a particular belief amounted to a “philosophical” belief, testing the limits of relevant law. One such case, concerned with whether a belief that “mankind is headed towards catastrophic climate change” is protected, has been decided. The other, concerned with whether a belief in animal rights, in particular opposition to hunting, is protected is still ongoing.

In the first of these two cases, a person of strong green views, Tim Nicholson, was made redundant from his job as “head of sustainability” at Grainger plc. He claimed that he had been unable to work out the carbon footprint of his employers because staff had refused to give him the necessary data and that as a result he had been unable to set up a carbon management system for the company. He also claimed that the chief executive had once flown a member of staff to Ireland to deliver his Blackberry which he had left in London and had showed ”contempt” for his concerns. The employer argued that “What Mr Nicholson asserts is a scientific claim that if we don’t urgently cut carbon emissions, we will not avoid catastrophic climate change. There is nothing philosophical about that“. The EAT dismissed this argument and accepted that Mr Nicholson’s beliefs were “capable” of amounting to a ”philosophical belief”. The EAT remitted the case back to the original tribunal to decide on the evidence whether in Mr Nicholson’s particular case the belief attained “a certain level of cogency, seriousness, cohesion and importance” which is ”worthy of respect in a democratic society, [would] be not incompatible with human dignity and not conflict with the fundamental rights of others” (Grainger plc v Nicholson EAT on 3rd November 2009).

The Nicholson case was eventually settled out of court so the question posed by the EAT was never answered. However the principle was established and it is now clear that subjecting an employee to a detriment because of his or her strong green views can be unlawful discrimination.

In the second case an animal rights campaigner, Joe Hashman, claims he was dismissed from his job at the Orchard Park Garden Centre, Gillingham because of his beliefs. He has previously brought, and won, a case in the European Court of Human Rights concerning disruption of a fox hunt. In the present case Mr Hashman was dismissed from his job shortly after he had given evidence which helped convict Clarissa Dickson Wright of “Two Fat Ladies” fame of attending an illegal hare coursing event in Yorkshire in 2007. His employers are hunt supporters and he claims that their disapproval of his belief in animal rights was the main reason for his dismissal. The employers say his dismissal had nothing to do with his opposition to hunting and that anyway his beliefs could not amount to a “philosophical belief” for the purposes of the relevant anti-discrimination law. That case is still ongoing. A preliminary hearing has been fixed for January 2011 when no doubt the basic question noted above will be resolved by an employment tribunal. So watch this space!