sex discrimination

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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Watch your mouth – how employers can be discriminatory without realising it

Discrimination can come in many forms, but can be much subtler than you realise. When it comes to off-the-cuff comments, employers need to be careful of how things come across to other parties. This was the case with a recent claim made by a 59-year-old employee who was told she’d be more suited to a ‘traditional’ office. So where did the employer go wrong?

The background 

In February 2015 Ms Gomes (G) began working as an administration assistant for Henworth, which traded as Winkworth Estate Agents. G had been working for another agent in the Winkworth franchise since 2009, and had been transferred to Henworth from there.

A year later, in February 2016, G had a performance review with the company’s lettings director, who informed her that she needed to be more careful with her work. The meeting upset G, and she subsequently spoke to her line manager who spoke to Graham Gold, one of the directors.

Shortly after this G met with Gold, who told her that he felt she had not been paying attention to new methods of working, and had become preoccupied with an old piece of software that was now rarely used by the company.

A month later, in March 2016, Gold called G in for another meeting and told her: “This marriage isn’t working.” G claimed that, when asked about this comment, Gold said that G had typed and sent an erroneous letter to a solicitor, including referring to the deceased in question as ‘Mrs’ rather than ‘Mr’. Gold stated that, subsequent to this, a note would be placed on her performance record.

Additionally, Gold then told G she would be “better suited to a traditional estate agency” which G interpreted as Gold alluding to her being too old for that particular office. When G asked Gold what he meant by his comment, he suggested she “sleep on it and decide what you want to do,” which G interpreted as Gold recommending she consider leaving the company. According to G, at the time of the meeting she was planning to stay with the business until retiring at 65.

Not long after the meeting, G took sick leave for work-related stress and filed a grievance against Gold. The outcome of this grievance concluded that G should have more training opportunities, as well as stating that the original meeting with Gold had been carried out in an unsatisfactory manner. Gomes was not pleased with this outcome, however, and not only appealed but also tendered her resignation.

The tribunal allowed G’s claim for age discrimination, stating that the original comment ‘better suited to a traditional estate agency’ was unlikely to have been said to a younger employee, and was therefore a direct reference to her age. As well as this, the tribunal also allowed G’s claims for age-related harassment and constructive unfair dismissal.

The person put in charge of handling G’s grievance was also called into question, as they had compromised the meeting’s impartiality by allowing Gold to be present – despite Gold being the subject of the complaint.

In conclusion

This case is a harsh reminder that employers need to be careful with what they say to, or about, their employees. An age discrimination claim can arise from comments that allude to an employee’s age, even if it is not directly referred to – so think before you speak.

If you would like to discuss this within your organisation, please contact Alison.

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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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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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Sex discrimination: policy on enhanced shared parental pay

Snell vs National Rail ETS/4100178/2016

An employment tribunal awarded £28,321 to a National Rail employee (Snell) over his employer’s policy of giving a period of full pay to mothers and primary adopters on shared parental leave, but only paying statutory shared parental pay to partners and secondary adopters. It has lead to questions about whether it is discriminatory to pay a male parent taking shared parental leave less than a female parent taking maternity leave.

What is Shared Parental Leave?

Shared Parental Leave (SPL) was introduced in April 2015 to allow mothers to share their maternity leave with their partners. This Shared Parental Leave can apply to same-sex couples, couples who are adopting, co-habiting couples, and couples bringing up a child together even if the child is from a previous relationship.

How is Shared Parental Leave being paid?

It has been found that not many partners have opted to take up Shared Parental Leave. It has been suggested that this is because many employers are paying fathers taking Shared Parental Leave statutory parental pay. This is in comparison to many mothers who are receiving enhanced maternity pay.

Is it discriminatory for male parents taking SPL to receive less than a female parent?

In the case of Snell vs National Rail, both Mr (Claimant) and Mrs Snell were working for National Rail, the Respondent. They opted to take Shared Parental Leave, Mr Snell taking 12 weeks SPL and his wife taking 27 weeks. They were told that Mrs Snell would receive full pay during her SPL but Mr Snell, the Claimant, would only receive statutory parental play. He raised a grievance stating his lower payment was sex discrimination. National Rail rejected this.

The Claimant then brought the indirect sex discrimination claim to the Employment Tribunal. The ET agreed that the payout was discriminatory and awarded Mr Snell over £28,000. National Rail has now changed its policy so that both men and women receive statutory pay.

In a nutshell

The decision made by the ET in this case shows that the Tribunal do not look favourably on male and female parents being paid differently during shared parent leave. Although it has not reached the EAT, it is worth considering your policy as the payout to Snell in this case was high and discrimination awards are not capped.

For more information, visit http://79.170.40.162/enlightenhr.com/or contact Alison Benney:

alison@enlightenhr.com

Tel: 01803 469466

Mobile: 07967221595

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