Russian firm’s “femininity marathon” shouldn’t pass the mile mark

Another week, another *ahem* ‘naïve’ company running an event that actively stereotypes women…  Whilst it can seem that regular stories about women being stereotyped in the workplace are almost the status quo, it is worth noting that the fact they are viewed as newsworthy (when, arguably, twenty years ago they wouldn’t be) is a positive in today’s modern society in terms of helping prevent future discrimination.

So, what’s happened this time? Well, a Russian company recently announced the
holding of a “femininity marathon” during this month.  So far, so naive…

However, initiatives within the so-called femininity marathon include:

  • Cash bonuses for wearing a dress or skirt “no
    longer than 5 centimetres from the knee” upon them sending a picture of them wearing
    the relevant clothing to the company; and
  • A competition to see who is quickest at making
    dumplings!

Can a long-term sickness employee become practically unsackable?

The Employment Appeal Tribunal (EAT) have recently held an employee to hold ‘an implied right not to be dismissed’ when on long-term sick leave.

Naturally, this has caused many employees great concern
because long-term sickness absence, in itself, is usually fair reason to
consider dismissal.  Whilst there can be
various factors at play, including any potential disability of the employee,
the principle of an individual having to be present at work to fulfil their job
role (and employment) remains.

So what happened in the recent case of ICTS (UK) Limited v Mr A Visram to cause such concern?

Well, let’s set the scene briefly, Mr Visram was
contractually entitled to sickness benefit payments (termed ‘Long Term
Disability Benefits’) during any period of continuous sickness absence from
employment whilst he remained an employee. 
But, for various reasons, the insurer and employer didn’t wish to pay
them and, in doing so, Mr Visram was dismissed on grounds of sickness absence
and so ended his entitlement to contractual Long Term Disability Benefits payments
by the insurer (as the policy required his continued employment).

More sexual harassment claims in law firms

While many firms are very forward looking, it is apparent that the old “Mad Men” culture is hanging on in several locations, not least in law firms, even if in isolated pockets.

A couple of weeks ago, Lloyds of London announced a zero-tolerance approach to sexual harassment after it had been called “a meat market” and “institutionally sexist”. In response to recent allegations of harassment, Lloyds has announced that it will impose lifetime bans on anyone found guilty of “inappropriate behaviour”, as well as banning daytime drinking, again with a complete ban from the market for those who breach the rules.

Judging by recent reports, it seems that several law firms could benefit from considering what steps should be taken to contain the actions of their owners and employees

In Harrison v Riaa Barker Gillette LLP, a case heard over 11 days in late 2017 and early 2018 but in respect of which the judgment wasn’t published until late March 2019, the employment tribunal was asked to consider complaints sex discrimination, victimisation and harassment brought by Ms Harrison, formerly a partner and head of employment with the Respondent, a commercial and private client law firm based in the West End.

Ms Harrison joined the firm in December 2012 and was at the time the only female partner. She described ” a male dominated environment where inappropriate sexist and sometimes racist behaviour was tolerated, and on occasions laughed at”, with partners engaging in puerile banter.

White, heterosexual, male candidate discriminated against, when applying to Cheshire Police

Equality and diversity issues are very much to the fore in modern life. Routine behaviour which would have been acceptable just a few years ago, e.g. “characterised as banter”, is now out of the question, and there is a far greater awareness of equality and diversity in all aspects of life, not just in the workplace.

Last December I highlighted an example of a situation in which ostensibly laudable diversity objectives were taken too far and it now appears that Cheshire Police has fallen into the same trap, this time in the context of recruitment procedures.

Matthew Furlong was keen to join the police force, following in the steps of his father, a detective inspector. In 2017 he applied to join Cheshire Police. At his interview he says that he was told that “it was refreshing to meet someone as well prepared as yourself” and that he “could not have done much more”. He duly passed the interview and assessment stage.

As observed in the Tribunal judgment, Mr Furlong is a white heterosexual male without a disability. In November 2017, notwithstanding his successful interview and assessment, he was told that his application had been unsuccessful. Cheshire Police claimed that they had applied positive action measures pursuant to section 159 of the Equality Act 2010. Mr Furlong maintained that Cheshire Police treated successful candidates with protected characteristics more favourably than he was treated, but unlawfully because they were not as well qualified as he was and because there was a policy of treating persons with protected characteristics more favourably in connection with recruitment than others who did not have such characteristics. The result, he contended, was that this approach was not a proportionate means of achieving a legitimate aim.

Religious discrimination in faith schools

“Living in sin” – it was a phrase frequently heard not that many years ago but now, in a mark of changing times, is seldom if ever heard. However, the phrase, in its literal sense, has resurfaced in what some might consider to be a remarkable decision of the Employment Appeal Tribunal (EAT) in the case of Gan Menachem Hendon Limited v Ms Zelda de Groen.

Ms de Groen worked from 2012 to 2016 at the Gan Menachem Hendon nursery as a teacher. The nursery is linked with the ultra orthodox Chabad Lubavitch Hasidic movement. When attending a barbecue with her boyfriend, he revealed, in the presence of parents of children who attended the nursery and one of the nursery’s directors, that he and Ms de Groen were cohabiting. There followed a meeting between Ms de Groen, the headteacher Miriam Lieberman and the nursery’s managing director, Dina Toron. In the course of the meeting Ms de Groen was told that her private life was of no concern to the nursery. However, she was asked to confirm that she was no longer living with her boyfriend so that “concerned parents” could be notified accordingly. In other words she was asked to lie and refused to do so.

As if that was not enough Ms Lieberman and Ms Toron told Ms de Groen that cohabitation outside marriage was wrong, that having children outside of marriage was wrong and that, at the age of 23, Ms de Groen should be aware that “time was passing” for her to have children. They also suggested that if Ms de Groen had problems with the idea of marriage, she should seek counselling. Ms de Groen was very tearful and distressed. She felt that such a meeting should not have taken place and only continued in her employment because she loved working with the children. Two days later she asked for a written apology and confirmation that it would not happen again. She said that she had taken legal advice. Mrs Toron and Mrs Lieberman said that she was being threatening and aggressive at the meeting (the Tribunal found that she was not, but she was clear and firm). They did not apologise. Instead, they said that they should not have been so nice to her and that they had sufficient “ammunition” to deal with any claim that she might bring. They then cut the meeting short.

The following day Ms de Groen received a letter notifying her of the commencement of disciplinary proceedings.

Discrimination in Recruitment: How to Avoid Discriminatory Advertisements

It is important that employers are mindful of their obligation to carry out a recruitment and selection process that is non-discriminatory in nature. Employers should therefore allocate sufficient time and care when publishing job advertisements so as not to be caught out – there is no cap on damages awarded at the Employment Tribunal for a successful discrimination claim so any mistake could prove very costly.

As a
starting point, a job advertisement must not discriminate on the basis of any
of the nine protected characteristics as defined under the Equality Act 2010,
which as a refresher are:

Can a negative reaction to a refusal to shake hands constitute discrimination on grounds of religion?

The internet is riddled with articles detailing the importance of a good handshake, but just how vital is it for the proper performance of your duties at work? A Swedish, Muslim, woman has been awarded compensation after her job interview for a role as an interpreter was terminated when, due to religious grounds she would not shake hands with her potential employer.

When the male interviewer extended his hand in greeting as is traditional in Europe, Farah Alhajeh, 24, instead placed her hand over her heart. The response was her way of greeting the interviewer in a way that also aligned with her religious beliefs.

Some Muslims avoid physical contact with members of the opposite sex (except for in cases of emergency, or when there is a ‘special relationship’ present – i.e. the individual in question is their partner or a blood relative). This is why Ms Alhajeh offered an alternate greeting – there was no such special relationship between Ms Alhajeh and her interviewer, so she placed her hand on her heart, as is commonly done by those who share the same belief.

In handing down the judgement, the Swedish Labour Court (similar to the Employment Tribunal in the United Kingdom), had to balance the employer’s interest with the individual’s right to bodily integrity and the importance for the state to maintain protection for religious freedom.

The company’s main argument hinged on the fact that it was an established workplace policy that men and women were to be treated equally, and as such they could not allow a staff member to refuse a handshake based on gender.

Dressing for work

The government has released some useful guidance to assist employers in getting to grips with worker’s rights and the law surrounding dress codes in the workplace. The guidance acknowledges that employers should have the power to draft and enforce a workplace dress code policy but must ensure that it is not discriminatory in nature. There is a lot of misunderstanding and confusion surrounding such policies and it can be difficult for employers to get the balance right. Can a policy require a male employee to wear a tie? A female employee a skirt? What should your stance be on manicured nails? While the guidance does not change the law in this area, it does provide some welcomed clarity (although it is not without its critics).

As you may recall, the ‘high heel scandal’ brought dress code discussions to the media forefront back in 2016 after a temp worker, Nicola Thorp was sent home on the first day of her assignment at a large London firm for wearing flat shoes. It was stated within the employment agency’s Grooming Policy that female staff were required to wear smart shoes with a heel height of between two and four inches. Nicola was advised by the agency that she could take time out of the working day to purchase a suitable pair and was sent home without pay when she refused.

As a result of her treatment, Nicola submitted a petition to government to make illegal any policy which forced women to wear high heels at work. The petition received 152,420 signatures over a six month period and gained the right to be debated in parliament on the 4th of March 2017. The government’s view is that the current legislation is clear and sufficient enough as it stands to protect employee’s rights. While pledging to take action to remove the barriers to equality for women at work, the government maintains that employers are entitled to set dress codes for their employees provided that they are reasonable.

A joint report by the Petitions and Women and Equalities Committees however has called on the government to do more

Addressing the gender pay gap: is it time to consider “use it or lose it” paternity leave?

father and childAs we know, the 4th of April 2018 marked the deadline for all companies in Great Britain (but not Northern Ireland) with more than 250 employees to report their gender pay gap to the Government Equalities Office. As detailed in our blog last month, the returned data shows that nearly 80% of those who have responded have reported higher levels of pay to men than women.

So now that the data has been collected and will continue to be so annually from here on in, we should consider further what employers can do to reduce or eliminate their gender pay gap. Among the suggestions raised are target setting, salary transparency or increased training opportunities for women. One of the key reasons however why women’s pay progression lags behind that of their male colleagues is maternity leave and time taken off for childcare. Could restoring the balance between men and women in relation to paid parental leave have the dual effect of restoring the gender pay balance?

A recent enquiry launched by the Women and Equalities Committee into Fathers and the Workplace indicates that it could. The enquiry has been prompted by research findings contained in the 2017 Modern Family Index which confirmed twice as many fathers compared to mothers believe that working flexibly will result in them being perceived as less committed to their job and would negatively impact their career. Over half (53%) of millennial fathers indicated that they struggled to balance the demands of working full time alongside family commitments and would like to downsize to a less stressful job. The report also notes that women in the UK make up 74.2% of the part-time work force – largely attributable to increased care-giving roles, while the vast majority of fathers still work full time.

Shared parental leave has been available to new fathers since the Shared Parental Leave Regulations came in to effect on 5th of April 2015. The Regulations allow up to 50 weeks leave or 37 weeks’ pay to be shared out between both parents as they please – either in one block or split into several chunks with periods of work carried out in between. Statutory shared parental pay is payable at either £145.18 per week or 90% of the parent’s weekly salary, whichever is lower.  With a predicted take up rate of only 3 – 8% however, it is clear that the Government flagship policy does not go far enough to even out the parental responsibilities. So why has there been such a reluctance from male employees to take up the scheme? The negative social and cultural connotations associated with paternity leave as evidenced by the statistics above contribute heavily, with many fathers feeling unsupported in the workplace with regards to childcare and their aspirations for an improved work-life balance. Also very telling within the Modern Family Index Report is that 44% of fathers stated that they have been dishonest with their employer with respect of family related responsibilities for fear that it may ‘get in the way of work’.

Gender Pay Gap Reporting: Myth-busting

I write further to the deadline for Gender Pay Gap Reporting expiring last week. Much has been made in the media of that deadline being the day by which qualifying employers (i.e. those with 250 or more employees) have to submit the percentage difference in pay between their male and female staff.

The initial results? Nearly 80% of those employers who have responded (some haven’t) have reported higher pay levels to men than women.

So, that means that those employers are discriminating against women, right? Well, not necessarily. But the figures are there in black and white – surely, every employer with a higher pay towards males is inherently sexist? Not really.

The reality is that the figures are suggestive only and there are many legitimate reasons why pay may be skewed either way, whether towards males or females. Let’s take a look and bust some myths about the Gender Pay Gap Reporting.