Employment Law Snippet – No.1 – Tattoos

Hello and welcome to our first Employment Law Snippet article. These conversational articles aim to focus on one general topic and then have an interesting, non-jargon filled discussion on how that subject affects employees and employers alike.

The first topic is an interesting one: tattoos! You may be thinking “what on earth do tattoos have to do with employment law?” Well, not that much at present but that may start to change in the future.

Are tattoos that important a consideration within employment law? Well, to start, I regularly hear employment-related tales of friends of friends and, recently, I heard about a young woman in her twenties going to a job interview and all, initially at least, going very well with the interviewer. That is, until the interviewer noticed the small floral tattoo on her wrist (which barely poked out from underneath her small watch) and, from that moment, the interviewer appeared to ‘go off’ her, cut the interview short and, lo and behold, she didn’t get the job (which, for the record, wasn’t in a customer facing position).

Christian doctor’s contract ‘terminated’ for refusing to identify transgender patients

A Christian doctor who was training to be a medical assessor for the Department of Work and Pensions (DWP) had his contract terminated due to his refusal to use ‘transgender pronouns’, he has claimed to the Birmingham Employment Tribunal.

Dr David Mackereth, who had 26 years’ experience as an NHS doctor, was asked to refer to patients in accordance with their chosen gender identification. However, he responded that he would have a problem with this as he believed that gender was defined by biology and genetics, telling the Tribunal that he would not refer to “any six-foot tall bearded man” as “madam”.

He states that he was suspended as a disability claims assessor in June 2018, and his contract subsequently terminated.

Japan’s Labour Minister backs Mandatory Heels

Japan’s Health and Labour Minister Takumi Nemoto has caused a stir this week after publicly defending workplace policies that require women to wear high heels to work. The Minister’s comments argued that such requirements were socially accepted as being both ‘necessary and appropriate’ and were made after a petition was filed against the practice.

The petition, submitted to the labour ministry on Tuesday, raises health and safety concerns regarding the requirement, labelling it sexist and outdated. The minister unfortunately did not sympathise with the plight – equating high heels with a level of femininity which is considered to be a social norm within Japanese culture.

Dubbed the ‘#kutoo’ movement, (stemming from a combination of the Japanese word for shoes ‘kutsu’, ‘kutsuu’ meaning pain, and also a nod to the popularised global ‘#metoo’ movement against sexual abuse), the petition continues to gain traction on the online platform Change.org which at the time of writing had received nearly 30,0000 signatures.

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!

Nurse dismissed for ‘preaching’ to patients loses second appeal

A nurse in Kent has lost a second appeal against
an Employment Tribunal decision that found she was fairly dismissed for ‘preaching’ to patients.

The Court of Appeal case, Kuteh v Dartford and Gravesham NHS Trust, considered the balance between the importance of the right to freedom of religion and the individual’s right to be protected from inappropriate or improper promotion of beliefs. In this case the complainants were hospital patients attended to by Ms Kuteh in the Intensive Treatment Unit of Darent Valley Hospital in Dartford. Ms Kuteh had 15 years’ nursing experience and prior to her dismissal she was employed in a pre-operative assessment role. Understandably, the nature of her role meant that the patients she attended were at a particularly vulnerable moment in their lives.

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.