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.

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The phenomenon of the ‘work nemesis’

Some people have one, some don’t. No, it’s not a riddle for a shadow, it’s a phenomenon known as the ‘work nemesis‘.

Some people reading this blog will know exactly what I’m on
about and some won’t have the first idea. 
That’s fairly usual, as the existence of this phenomenon largely depends
on where you work and who you work with. 
Just to clarify, however, a ‘work nemesis’ is an individual who you
simply can’t gel with (or, to just more direct terminology, a people who you
can’t stand and/or dislike and/or are insanely competitive with).

You know in life sometimes you meet someone and, however
hard you try, you just can’t find a way to like them or enjoy spending time
with them?  That’s what we’re on about
here.  It’s the person who blanks you in
the kitchen but immediately strikes up a glowing conversation with the next
person who walks in, the person who (in your eyes) sends horrifically rude
emails or the person who, out of nowhere, takes sole credit for your idea in a
meeting.

Why is this relevant?  Well, naturally, taken too far, relationships between two warring individuals can affect their performance and that of the surrounding team.  So let’s explore a hypothetical scenario and see how it plays out in terms of employment law.

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Was Maurizio Sarri smoked like a Kepa during the League Cup Final? – Refusing to obey reasonable management instructions

First, a confession. I’m a big football fan and regularly post legal blogs trying to link football to employment law. Sometimes there is an obvious link (i.e. a football manager being sacked) and sometimes the link is more tenuous (i.e. a previous blog many moons ago in which I tried to link a Luis Suarez blog to an employment law situation!)

However, during the recent League Cup Final (yes, I refuse to refer
to the tournament by the sponsor’s name), there was a golden employment-related
opportunity.  Yes, naturally, I’m talking
about Kepa Arrizabalaga’s refusal to accept his substitution from the game in
the 119th minute. 

In fact, the opportunity was perhaps so obvious that I
woke up on Monday morning to a LinkedIn post wondering how long it would be
until I posted a blog on the topic.  So
here it is.

In fact, the opportunity was perhaps so obvious that I
woke up on Monday morning to a LinkedIn post wondering how long it would be
until I posted a blog on the topic.  So
here it is.

Rather than my usual method of substituting the real-life
situation for a fictional one (i.e. in the Luis Suarez example above, I created
a fictional employee in a factory who bit a colleague), I’ll explore the actual
situation at Chelsea and their options.

Kepa Arrizabalaga (who I’ll call “Kepa” for the rest of
the blog) no doubt has a contract at the club to represent the club to his full
ability.  This would involve training,
keeping fit, playing games he is picked for and, as per all employees,
the implied duty of ‘obeying reasonable management instructions’.  Naturally, it doesn’t take a law degree to
conclude that Kepa’s refusal to obey his manager’s decision to be substituted
from a Cup Final is a likely failure of his Contract of Employment with the
club, both in terms of a complete, literal failure to obey reasonable
management instructions from his Manager and, also, bringing the club into
disrepute and/or failing to represent the club in good faith.

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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.

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88 Year old’s Employment Tribunal Success

You are never old to have fun, to learn a new skill or to see new places, and Mrs Eileen Jolly has shown that one of those new places could be the inside of an Employment Tribunal after she demonstrated this month that you are never too old to bring a successful age discrimination claim against your employer.

Mrs Jolly, born in 1930 was employed in 1991 by the East Berkshire college of Nursing and Midwifery, which later become Royal Berkshire NHS Foundation Trust. Now, aged 88 she has successfully brought a claim against her employer for unfair dismissal as well as discrimination on the grounds of age and disability; and breach of contract.

Mrs Jolly was held to be disabled within the meaning of s.6 Equality Act 2010 by reason of her heart condition and arthritis. Despite this, Mrs Jolly had not taken a day off work in the past ten years, and even returned after suffering a cardiac arrest at work in 2004, where she was resuscitated by a surgeon.

Mrs Jolly’s complaints stem from her dismissal in January 2017, which the Trust maintains had nothing to do with her age, and rather was based solely on the grounds of culpability for her failure to adequately maintain a database of patients awaiting reconstructive surgery.

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Handling loss of ‘the fear’ within employment (whilst celebrating National Love Your Pet Day)

This is one of those blog posts with unusual beginnings and which, albeit hopefully in a good way, may be read differently by different people. In a nice roundabout way, albeit slightly coincidentally, we’re also celebrating today being ‘Love Your Pet Day’ through the dog-related theme!

Let’s just clarify what ‘the fear’ is before continuing.  Basically, ‘the fear’ is a largely 1990s-based phenomenon centring round a particular episode of FRIENDS in which Rachel loses the desire to continue in their current job but, without her acting to resign, lacks the determination to make
the decision to get another job.  In this way, ‘the fear’ is similar to the fear of failure that drives you to revise hard for exams or the fear of not being fit enough for a half-marathon which pushes you to go for a run even when you don’t feel like it and, obviously, losing ‘the fear’ to apply full efforts within a job can make a noticeable difference.

Now, naturally, all jobs and employers are different. You can work in the same role at two different places and have completely different experiences to the same extent that you can have two different job titles within the same employer and have polar opposite enjoyment levels. However, for the sake of the rest of this blog, let’s take a really general (and vague) view of this tricky situation for employees and employers alike.

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How a 3,000km run through New Zealand affects employers – agreeing sabbaticals

Firstly, let’s get it out of the way, I’m a complete bookworm. When I’m not at work (reading documents, emails, cases, you name it), I’m reading my Kindle during my lunch hour and on my commutes to and from work. I’m that guy that regularly averages 2-3 books per week and, frankly, my wife has long accepted that she shares my attention with ‘that Kindle’.

Why is this relevant? Well, recently, I’ve started reading a fascinating book called ‘The Pants of Perspective’ by Anna McNuff. Summarised briefly, this book highlights the talk of a woman who decided she needed a break from her regular, office-based job, so arranged a 6-month sabbatical to run 3,000km from the south to north of New Zealand with a backpack and small tent.

Rather surprisingly, my main double-take whilst reading the opening part of the book wasn’t the idea to run 3,000km across a huge country through sub-zero temperatures into 40’c degree heat but, rather, that she persuaded her employer to grant her a 6 month sabbatical in the first place!

You’d think that an employment law Solicitor would deal with plenty of sabbatical applications and that, out of all the various applications you could make to your employer, a sabbatical wouldn’t be seen as hugely controversial but, alas, no. Why? Well, partly because they are rare and uncommon and, because of this, employers don’t usually know what to do with them.

Is this is the main reason? Well, perhaps not. In reality, sabbaticals used to be common after staff had been at an organisation for a lengthy period of time (i.e. 15, 20 or 25 years) and, nowadays, it is much rarer for staff to hit those periods of service. Partly because of this, it is normally only really in academic roles that staff commonly obtain sabbaticals, albeit sometimes these aim to facilitate research and/or the authoring of articles rather than an ‘escape’ from the workplace.

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How would bruising Brexit arguments be resolved in the workplace?

It seems that everything at the moment is about Brexit. Hard Brexit. Soft Brexit. No deal Brexit. Asking the people whether they want Brexit first ‘Brexit’. It all makes a mockery of the initial “Brexit is Brexit” comments from Theresa May at the start of the process. Even the word itself and continuing discussion of it, whatever your view, can become irritating and lead to entrenched beliefs in either ‘getting it done’, ‘getting it sorted’ or ‘stopping it’.

So, what happens when these views lead to difficulties in the workplace?  After all, the traditional dinner party rules of ‘don’t discuss religion or politics’ seem to apply more and more to workplaces.  But Brexit seems to have slipped past this implied rule, particularly when the (potential) event itself could lead to job instability and restructure of certain workplaces.

Let’s take a hypothetical example of how an employer should manage two warring colleagues with opposite views on Brexit who, unfortunately, let it impede work.  Our hypothetical employer, Brilliant Britain Limited, supplies union jack mugs around the world.  In order to do so, they rely heavily on the Production Manager, Tessa, and the Delivery Manager, Jez.  Naturally, the company needs both to do their jobs well – after all, you need goods to deliver and can’t sell goods without delivering them; therefore, the aims of their jobs go hand-in-hand.  From week to week, Tess and Jez need to constantly meet to update each other on production and delivery needs, so either can be amended to suit the other.

However, during these frequent private meetings, Jez and Tessa have clashed repeatedly on the idea of Brexit.  To use the rather awful slogans, Tessa is a ‘Brexiteer’ who wants to leave the EU and Jez is a ‘Remainer’ who thinks the UK would be in a worse state outside the EU under the current Withdrawal Agreement.

In recent weeks, as the political situation has worsened and Parliamentary stalemate has become entrenched, Jez has become an advocate of the People’s Vote (i.e. having a second referendum).  This was the final straw for Tessa who firmly believes that the result of the first referendum should be upheld and remains binding.  The two have effectively fell out, refuse to meet face-to-face and now communicate only by way of tetchy, aggressive emails.

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Can the right to use a substitute be consistent with employee status?

There are around seven million carers in
the United Kingdom in 2019 – and that figure is estimated to increase by 3.4
million by 2030. That is a 60% estimated increase in just over ten years’ time.
A recent case involving a live-in carer with over three years’ service explores
the issue of determining employee status for non-traditional work relationships,
and confirms that the right to use a substitute does not always preclude an
individual from having employment status.

Historically, the law has been clear in confirming that an unfettered right to appoint a substitute is not consistent with employee status. However, Catfeild-Roberts v Phillips & Universal Aunts Limited, an Employment Appeal Tribunal judgment of this month, serves as an example of where this is not always the case.

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Worker Status Confirmed for Uber Drivers

Uber’s appeal against a landmark tribunal ruling in 2016 has been unsuccessful following a judgment handed down in the Court of Appeal yesterday.

Uber drivers shall continue to be classified as workers, directly employed by the company, and will be in receipt of all the employment law protections that this affords.

The appeal was lodged by Uber to
overturn a 2016 Tribunal ruling that the hire-on-demand driver service should
treat its drivers as workers not as self-employed as argued by the firm. The
original decision was upheld after the judges reached a 2 -1 majority decision –
finding in favour of the workers.

Uber’s contention was that its
drivers should be treated as self-employed, in a similar way to that in which taxi
drivers and other private-hire vehicles are. In Britain, the self-employed are
not able to access basic employment-law protections such as for example the
right to a minimum wage, paid holidays, sick pay and rest breaks.

The above benefits carry
significant costs, which Uber’s business model has attempted to circumvent by
misclassifying drivers as self-employed when in reality, on the facts and as
re-confirmed by yesterday’s judgment they are workers. Uber has however
introduced a number of benefits to its drivers this year (for example pairing
up with insurance giant AXA to provide partner protection insurance for its
European drivers in the event of injury, sickness and family leave) and its position
is that the drivers enjoy the flexibility that the role offers, and that on
average its drivers earn much more than the minimum wage.

So why have the drivers been classified as workers?

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