Walking the catwalk between appropriateness and discrimination

We all know just how important image can be for those who work in the retail and consumer sector. From the look of the menus. to the layout of the room and the staff on a shop floor, each detail counts towards creating the overall brand of each establishment. It even affects the clothes employees wear to work.

Employees’ clothes will largely depend on the general atmosphere and ‘feel’ of the establishment – for example it’s not surprising to see checked-shirt-wearing hipsters working in trendy craft beer pubs, whilst smart clothing brands might expect their staff to reflect the sophistication in their work wear. But where do retailers draw the line between appropriateness and discrimination, and what does the law say on the issue?

In a recent example of what not to do, a London jazz club posted an online job advert looking for ‘extremely attractive’ staff to apply and requested that female applicants ‘must be comfortable wearing heels’. The Equality Act 2010 deems it unlawful for an employer to discriminate against someone because of their gender, so it seems clear that a dress code that places more demands on female employees than their male colleagues will be unlawful. But it’s important to note that this protection extends to the recruitment process.

Insisting on certain dress codes or requiring ‘physical attractiveness’ may leave employers exposed to potential discrimination claims. However, there is a distinct absence of cases where discriminatory dress codes have been challenged, leaving the law unclear.

When it comes to demands concerning appearance, expecting more from a person with a protected characteristic like gender, race, disability and age over another person who doesn’t have that protected characteristic is likely to amount to discrimination.

Although the law around dress code remains unclear, a recent case showed the consequences when companies fail to make reasonable adjustments around an employee’s disability. In a recent case, Abercrombie and Fitch claimed an employee went against their ‘look policy’ after she refused to remove a cardigan which covered her prosthetic arm. The shop then suggested she work in the stock room until the winter uniform came in. Following this Ambercrombie & Fitch was taken to an employment tribunal, and the employee was awarded over £9,000 in compensation from her former employer. This included an award of £7,800 for injury to feelings on the basis that it unlawfully harassed her and failed to make reasonable adjustments to its ‘look policy’, with respect to her disability.

The Government is drafting new guidance for employees around the issue, following campaigner Nicola Thorp’s petition against women being required to wear high heels at work. The petition gathered 152,420 signatures and prompted an inquiry, which heard evidence from a large number of women who recounted being forced to dye their hair, wear revealing uniforms, and constantly reapply makeup. The inquiry concluded that the Equality Act 2010 was not fully effective in protecting workers from discrimination. It is hoped that the new guidance   will provide clarity to employees and employers and help to clear up some of the confusion.

It’s clear here that there is a delicate balance in promoting a strong brand image whilst and discrimination. The consequences can be bad publicity and a loss of custom, as well as huge fines. If in doubt, you can contact Alison for expert advice here.

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How to thrive at work – are you facing a ‘mental health challenge’ in your workplace?

This week ‘Thriving at Work’, an independent report commissioned by the Prime Minister, has been published. Co-authored by Paul Farmer (Chief Executive of mental health charity Mind) and Dennis Stevenson (former HBOS chair), the report sends a clear message to employers that a change in attitude is needed. Specifically, it calls on the Government to adopt 40 recommendations – including legislative reform.

What does the report say?

Claiming that the UK is ‘facing a mental health challenge at work, that is much larger than we had thought,’ the report points out that:

  • up to 300,000 people with long-term mental health issues leave their jobs every year (it is noted, however, that this statistic could include the same individual twice if they move around employment);
  • around 15% of employees have symptoms of an existing mental health condition; and
  • the UK economy spends around to £99bn every year due to employees that are ‘less productive, less effective, or off sick’ because of poor mental health.

Paul Farmer highlights the ‘crucial’ role that employers must play, with the report alluding to the fact that ’employers are perhaps able to have the greatest impact and scope to make an impact’, being in the unique position of being able to ‘create a positive and supportive workplace culture themselves free from stigma’.

As well as this, the report recommends that employers adopt what are described as ‘mental health core standards’ – a framework for a set of actions which can be implemented across all workplaces ‘quickly’ and at little or no cost. These mental health core standards emphasise the need for:

  • producing, implementing and communicating a mental health at work plan;
  • developing mental health awareness among employees;
  • encouraging open conversations about mental health and the support available;
  • ensuring employees have a healthy work-life balance and opportunities for development;
  • promoting effective people management through line managers and supervisors; and
  • routinely monitoring employee mental health and wellbeing.

Does the size of the company matter?

In short, no… but the report recommends an enhanced set of standards for employers with over 500 employees, as well as greater transparency and tailored in-house mental health support from employers who ‘can and should do more to lead the way.’

It also asks the Government to consider amending legislation and guidance, such as the Companies Act. This would encourage employers to report on workplace mental health through channels such as their website.

Employers will also want to keep a keen eye on recommendations in the report for the government to consider legislative change ‘to enhance protections for employees with mental health conditions, particularly fluctuating mental health conditions’ and calls for clarification of the role of employers in providing reasonable adjustments. The report does not limit the potential for legislative reform, recommending that the government considers ‘what more it can do to require employer compliance with existing equalities and employment laws’.

What about the self-employed?

There’s no denying that the working world is getting ever more flexible. That’s why it’s good to see this report consider the changing nature of many workplaces, with many people now employed by the so-called ‘gig economy.’ Because of this, the authors of the report have stated that they have sought to ensure that their recommendations can be adopted by all companies – regardless of the size or type of workplace. Similarly, they have considered the findings of the recent Taylor Review of Modern Working Practices, which states that there should be ‘good work’ for all. For online platforms with large reach amongst self-employed workers, the report recommends that they make connections with NHS-approved health and wellbeing support to provide advice that can be accessed by those working through their technology.

What else does the report recommend?

Whilst some of the report’s 40 recommendations are focused on the public sector, the vast majority is likely impact on all UK businesses in some way. In addition to those mentioned above, other recommendations include:

  • specific recommendations for industry groups, professional bodies, insurers and workplace regulators to all support employers on tackling workplace mental health;
  • calls on the Equality and Human Rights Commission to take a more proactive role in monitoring and taking action against employers that discriminate against individuals on mental health grounds, and the Health and Safety Executive to revise its guidance in order to raise employer awareness of their duty to assess and manage work-related mental ill-health;
  • the formation of a mental health online information portal, co-produced by the voluntary, public and private sectors, to promote best practice and enable employers of all sizes to implement the mental health core and enhanced standards;
  • calls on the government to align the fragmented occupational health and practical support available currently from Access to Work, the Fit for Work Service and other NHS services to create an integrated in-work support service to better support the needs of those with mental illness, and other physical health conditions and disabilities; as well as protecting and promoting the current tax relief for employers to invest in the mental health of employees whilst exploring alternatives to potentially incentivise employers to implement the mental health core standards; and
  • a recommendation for public bodies to encourage their suppliers to implement the mental health core standards.

What’s next?

Whilst the report is simply making ‘recommendations’ at present, employers need to start taking action. The Prime Minister has made it clear that mental health is a priority on her agenda and the government is said to be considering the legislative changes suggested.

Aside from the report, mental health is a rising issue  – and one that employers need to tackle right now. Recently, ACAS issued guidance on mental health in the workplace for employers and, as the Prime Minister has commented, ‘it is only by making this an everyday concern for everyone that we change the way we see mental illness, so that striving to improve your mental health – whether at work or at home – is seen as just as positive as improving our physical well-being’.

If you’re affected by any of the issues raised above, you can contact Alison for expert advice here.

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Tribunal awards – calculating a week’s pay

In a recent case the Employment Appeals Tribunal ruled that a week’s pay should include employer pension contributions, rather than just basic pay, for calculation of compensation for claims under the Employment Rights Act 1996.

Let’s take a look at the facts.

Ms Drossou (D), who worked for the University of Sunderland, was dismissed on the grounds of an irretrievable breakdown in working relations, of which the University claimed D to be the main cause. Subsequently, D brought a claim of unfair dismissal that was eventually upheld by the Tribunal.

As a result, the EAT ordered compensation from the University, calculating a week’s pay by including the employer pension contributions. On the normal grounds that payments are not paid to the employee but into the pension fund, this decision went against the longstanding practice of excluding employer pension contributions from the calculations of a week’s pay.

The Tribunal felt that this deviation from standard practice was necessary, and said that the law under the Employment Rights Act 1996 (‘the ERA’) does not state that the amount payable by the employer has to be payable to the employee (i.e. it could be payable to a third party such as a pension provider). Additionally, the EAT stated that “remuneration” in the context of the ERA means a reward in return for services, and employer pension contributions are no less a reward for service than basic pay. The University was not satisfied with the ruling, but when it appealed to the EAT the Tribunal’s decision was upheld.

So, what does this mean for employers?

For the time being (at least until we see whether this decision is appealed) employers need to increase their calculations in accordance with the potential value of claims. Employers facing unfair dismissal claims need to be careful. If the claimant’s base salary is below £80,541 – the current statutory cap for unfair dismissal compensation – the calculation of a week’s pay becomes highly relevant. Where the employee earns less than the statutory cap on a week’s pay (currently £489), the basic award will also be increased – as well as all other awards based on the ERA definition such as the eight-weeks’ pay for a flexible working rules breach.

But, more importantly, the decision may impact protective awards. If employers fail to inform and consult under TUPE or, in a redundancy process, under the Trade Union and Labour Relations (Consolidation) Act 1992, then they could face large increases in the total compensation payable. The final amount will depend on the number of affected employees, the generosity of the pension provision and the size of protective award made up to the 13-week maximum. But if each employee has a 10% employer pension contribution and they all get an award of 13 weeks, then the total payable increases considerably.

For more information on this please contact Alison.

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Pensions update: Was a disabled employee treated unfavourably?

In Williams v The Trustees of Swansea University Pension & Assurance Scheme and another the Court of Appeal stated that a disabled employee was not treated unfavourably (and therefore discriminated against) when his enhanced pension on ill-health retirement was based on the salary he earned when working part time due to his disability, rather than his full time salary.


Mr Williams, the employee, suffered from Tourette’s syndrome, obsessive compulsive disorder and depression. Before eventually taking ill-health retirement (at 38) he reduced his hours with his employer, Swansea University, in order to better cope with his condition and his pay was reduced accordingly.

Mr Williams was allowed, by the University, to take his accrued pension benefits immediately and without any actuarial reduction for early receipt, rather than having to wait until his normal pension date nearly twenty-nine years later. This meant he was treated as though he had accrued nearly twenty nine years further pensionable service and his benefits were advanced.

Mr Williams brought a disability discrimination claim at the Tribunal under s 15 of the Equality Act 2010. Mr Williams argued that, by using his actual part time salary rather than a full time equivalent, the calculation of the enhancement to his benefits amounted to “unfavourable” treatment and therefore unlawful discrimination.

In the initial hearing the Tribunal upheld his claim. The University then successfully appealed to the EAT. Following this Mr Williams appealed to the Court of Appeal.

The Court of Appeal agreed with the EAT because:

  • under the pension scheme rules the only employees entitled to retire early and to receive an enhanced pension were those who retired through ill-health and who were necessarily disabled within the meaning of the Equality Act 2010;
  • Mr Williams had been treated advantageously in comparison to non-disabled colleagues and there is no authority for the proposition that a disability discrimination claim can succeed simply because an individual thinks he should have been treated better;
  • that Mr Williams was working part-time hours because of his disability could not be enough to require the employer to justify the treatment; and
  • there is no authority for the proposition that a disabled person who is treated advantageously because of their disability, but not as advantageously as a person with a different disability, has a valid claim that they have been treated “unfavourably”.

This decision confirms that, even if it could have been more advantageous, treatment that is advantageous does not amount to unfavourable treatment.

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The Supreme Court has ruled that employment tribunal fees are unlawful

The government suffered a heavy defeat on 26th July after the Supreme Court ruled that employment tribunal fees are unlawful and the government will now have to repay up to £32m to claimants, relating to claims dating back to April 2013.

Brought forward by the Unison union Lord Reed, the judgment said that the fees were unlawful because of their effects on access to justice. Introduced in 2013 and costing between £390 and £1200, the fees have been said to prevent access to justice for workers unable to fund their case.

“The making of the Fees Order was not a lawful exercise of those powers, because the prescribed fees interfere unjustifiably with the right of access to justice under both the common law and EU law, frustrate the operation of Parliamentary legislation granting employment rights, and discriminate unlawfully against women and other protected groups.”

While the fees were brought in by the government to reduce the number of malicious and weak cases, after 3 years there had been a 79% reduction in cases brought forward.

Discrimination cases cost more for claimants because of the complexity and time hearings took. The Supreme Court found this was indirectly discriminatory because a higher proportion of women would bring discrimination cases.

Unison general secretary Dave Prentis has said: “This is absolutely a tremendous victory, it’s probably the biggest victory of employment rights in this country.”

So what now?

In order to deal with this massive backlog of repayment and claims the Presidents of the Employment Tribunals have issued Case Management Orders.

The Order states that all cases and applications arising from the Unison case, or applications for reimbursement of fees, shall be made in accordance with administrative arrangements to be announced by the Ministry of Justice and HMCTS shortly… We wait to see what happens next!

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Must you provide a stand-up workstation?

An employee has requested that you buy them a stand-up desk instead of a normal sit-down one. Are there any real benefits of stand-up desks, and are you legally required to fulfil this request?

Whilst stand-up desks have been around for quite some time, they’ve recently become trendier and it’s been claimed that there are numerous health benefits that come along with one. But while stand up desks may offer a healthier way of working, can an employee demand you purchase them one?

The ‘Health and Safety (Display Screen Equipment) Regulations 1992’ says no. There is no legal requirement for you to provide stand up desks under any regulations. As long as the workstation has enough legroom for the employee, enough space for completion of tasks, space that allows movement and postural change and a low-glare work surface then you needn’t worry.

But are stand-up workspaces nothing more than a useless fad? Perhaps not. We know how sedentary an office job can make us – office employees spend at least five hours and 41 minutes at their desks per day, according to Loughborough University. Combined with at least seven hours of sleep per night and an evening that’s unlikely to result in a trip to the gym and you’ve got the perfect recipe for a variety of health problems, especially obesity.

Stand up work spaces can help combat a number of health issues. On average, a worker will burn an extra 50 calories per hour standing up than they would working sat down. And it doesn’t just tackle obesity. Sitting down for long periods of time decreases the body’s ability to regulate glucose, which can lead to type 2 diabetes. In some cases it can even increase the risks of certain cancers and cardiovascular disease. Whilst it’s unlikely that having an office job is suddenly going to lead to a heart attack, it’s little things that add up over time that can really make a difference.

Research stand-up desks and consider the costs before making any decisions. Stand-up desks can range from anywhere between £200 and £1000, but some suppliers offer a lease policy that means desks can be rented from as little as £1 per day.

Alternatively, a portable posture stand costs around £50 and can be fitted on top of a normal desk, and can be used with both laptops and desktop computers. While this is not encouraged for long term use it may give you a good idea of how effective a stand up desk can be within the office, and can easily be transferred between different employees.

But, if at the end of the day you aren’t convinced then there’s no need to fret. Remember that you are not under any legal obligation to provide stand-up work spaces for employees. The only time you would need to start considering one would be under the express recommendation of a GP, and it’s unlikely that this is going to happen.

For more advice on this or other HR matters please contact Alison.

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Can you really be too sick to resign?

An employee who had spent 18 months on sick leave before resigning was found by the Employment Appeal Tribunal to have delayed too long, in resigning, to bring a claim of constructive dismissal.

In this case the employee was a systems support analyst for Reuters. She resigned after being off sick with stress, anxiety and depression for 18 months. At this point she brought a constructive dismissal claim before the employment tribunal.

She justified this thorough objecting to treatment which took place before the commencement of sick leave. She stated that her delay in resigning and bringing a claim was justified because she was “too sick to properly consider [her] position” and had not properly “affirmed” her employment contract as she was off sick.

The tribunal rejected both these arguments. During the 18 months the claimant was off sick, she organised extensive travel plans and sought legal advice. She also accepted sick 39 weeks of sick pay. As a result the tribunal did not support a claim of constructive dismissal because of the length of the delay.

The Employment Appeal Tribunal agreed with the tribunal’s analysis. They ruled that she had, in fact, affirmed her contract by calling on her employee to perform its obligations under her contract (namely paying sick pay and providing PHI). As a result it was deemed that she had delayed too long and accepted the terms of her contract, during this period, and constructive dismissal could, therefore, not apply.

What do you need to do as employers?

This is good news, providing clarity for may employers managing employees on long term sick leave. Following this case it is important, for constructive dismissal to apply, for there to have been only a short period of sick leave and a short delay in resigning. Claiming sick pay can also be used to show that the employee has not ended the contract.

It is important that employers consider their processes and procedures for managing those on longer term sick leave. For advice and support with this please contact Alison.

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Compensation awarded for stress caused by rushed suspension

This case addresses the issue of stress and personal injury within the context of suspension from work and/or disciplinary proceedings. In this instance the claimant was employed by the Foreign & Commonwealth Office (FCO) as the UK High Commissioner to Belize. He was withdrawn from his post and suspended, pending a disciplinary hearing, following allegations of sexual misconduct made against him. During this suspension and a lengthy disciplinary process (as a result of which the allegations were dismissed), the claimant became ill with depression. He never returned to work and eventually retired. At this point he brought

High Court proceedings against the FCO for compensation for personal injury, alleging that stress resulting from the unfair process had caused his depression.

The Court of Appeal supported the ruling by the High Court that the FCO owed the claimant a duty of “fair treatment”. They found that this duty was breached when the claimant was withdrawn from post and suspended without any inquiries into the allegations and without their having put the allegations to him. The Court said the FCO should have made “some preliminary investigation” and exercised “some critical judgement” of the allegations made before suspending the claimant.

However, the Court of Appeal ruled that the claimant’s psychiatric injury was not a reasonably foreseeable consequence of withdrawing him from post and suspending him. He was an apparently robust employee, with no history of any psychiatric ill health. Therefore, the court ruled that although the FCO’s neglect of it’s duty of care was in breach of the claimant’s contract the claimant was not entitled to compensation for the psychiatric injury that he had suffered.

What do you need to do as employers?

It is easy to view suspension as a neutral act and it is, indeed, common practice to respond to such allegations as these by suspending the employees concerned as soon as a complaint is made, quite irrespective of the likelihood of the complaint being established. However, recent court rulings show that a change is taking place, with a need to protect the employee (and act on the employer’s duty of care) holding greater importance).

The test for liability for personal injury is whether the injury suffered is a reasonably foreseeable result of the breach of the duty of care. Whilst this was not found to be the case with this particular claimant, it is likely that there will be a case where an illness such as this will be found to have legitimately flowed from an employer’s conduct of a disciplinary process. As a result employers should bear this in mind when considering how to handle suspension and disciplinary investigations.

For advice on this and other relevant matters please contact Alison.

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You don’t get something for nothing. Employee’s covenants are only enforceable if the employer has provided consideration for them.

A recent High Court case ruled that, if an existing employee agrees to new restrictive covenants, they must be provided with some benefit (e.g., a pay rise or bonus payment) as ‘consideration’ for the variation to their contract. In this instance the court refused to enforce covenants against a former employee because he had not received any consideration for agreeing to them.

The background

When the former employee began working for the family-run business, in 1980, he was not given a written contract of employment, so did not have any restrictive covenants. When the business was taken over in 2013, the new owners issued him with a written contract, containing restrictions on his right to join a competitive business and against him soliciting his employer’s customers; He signed his new contract.

After he had tendered his resignation, however, his employer became aware that he had been involved in the formation of a competing business, which he intended to work for. The employer applied for an injunction to hold him to the restrictions in his contract.

However, the former employee argued that he should not be bound by the restrictive covenants because there is no consideration. In short, he had not received anything in return for taking them on. The employer disagreed, stating that they were introduced as part of a package providing benefits to the employee, including a pay rise. They also argued that, given he continued in employment after he had signed the contract this too amounted to consideration.

However, despite the judge finding that the employee had indeed committed serious breaches of his implied obligation of good faith and fidelity to his employer (in setting up a competing business whilst still employed) these arguments failed. It was not made conditional of signing the contract that the employee would receive the pay rise and could not, therefore, be linked. The same applied to the bonus structure implemented in the new contract. Futhermore, many of the other ‘new’ benefits were already enjoyed by the employee prior to him signing the new contract. Finally, his staying in employment was not found relevant because he was not told his refusal to sign it would, or might, lead to dismissal. Therefore, the court found that there was no consideration and the restrictive covenants were unenforceable.

What do you need to do as employers?

Consideration can take the form of money, benefits or even a promise to do (or not to do) something. It’s important that employers don’t assume that issuing a new contract (even if it’s signed) means the employee is bound by it. Acceptance of a new contract, especially one containing enforceable covenants, must be expressly tied to new benefit for the employee.

For advice on this or related matters please contact Alison.

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Employing people with disabilities

The Department for Work and Pensions has recently released guidance to help businesses employ and accommodate disabled workers. Updated on 24th July 2014 the new guidelines explain the advantages of employing disabled workers and offer suggestions on how you can comply with legislation in this area.

Under the Equality Act of 2010 a person who has a physical or mental impairment that has a substantial and long term effect on their ability to do normal daily activities is deemed to be disabled. It is against the law to treat somebody who has a disability differently either at work or during the recruitment process. Although discrimination can be indirect it is still illegal and employers should avoid not hiring or selecting an applicant or selecting a worker for redundancy based on their disability.

Nearly 7 million working age people in the UK are disabled or have a health condition that affects their ability to work. By encouraging job applications from people with disabilities, organisations are not only increasing the likelihood of getting a larger number of high quality applicants, but will also create a workforce that reflects the diversity of the community and customers they serve. Not only this, disabled workers can also bring skills and viewpoints to the workforce that otherwise may be missing, such as having a working knowledge of British Sign Language (BSL).

There are a number of ways you can make your recruitment process more accessible to disabled workers. These include;

  • Making your job adverts accessible to avoid discrimination. Use a font that is easy to read, only list skills that are vital to the role so you are not excluding any sections of the community. You should also provide the contact details of a person within your organisation that can offer more information about the role and discuss any reasonable adjustments that may need to be made.
  • Although it is illegal to ask about an applicant’s health until you have offered them a job, you should find out if any reasonable adjustments need to be made for them to attend interviews or perform the role if offered to them.
  • Using the two ticks symbol on your job advertisements will show that you encourage applications from disabled candidates.

Some employers are discouraged from employing workers with a disability as they fear the costs of making adjustments to accommodate them will be too high. However, often the costs are very low and there are even grants available to support employers in creating the right working environment for a disabled employee. Access to work is a scheme specifically designed to aid employers in employing disabled workers; you can view more information here.

Reasonable adjustments should be made throughout your recruitment process, as if at any time an applicant or employee feels they have not been made then they have a right to take you to a tribunal.

Reasonable adjustments could include;

  • Changing a disabled persons working pattern.
  • Providing training or mentoring for a disabled worker.
  • Altering your premises or equipment to aid a disabled worker.
  • Providing important information in accessible formats.
  • Allowing extra time for disabled applicants in tests or interviews

If an employee has become disabled since working for your business or there has been a change in an existing impairment or health condition that makes it harder for them to fulfil their role, the Jobcentre Plus offers advice on how you can retain disabled employees.

More information on how to cater for specific disabilities can be found in the guide from the Department for Work and Pensions found here.

If you would like any help or advice on employing disabled workers please contact enlightenHR alison@enlightenhr.com.

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