Social media and dismissal

Photo by Alex Haney on Unsplash

Regular readers of this Blog will know that I have written several articles over the last few months about the legal consequences of social media (mis)use and the effects on relationships in the work place. Comments or images posted on social media by employees can have serious reputational consequences for their employers.

The Israel Folau case

In a blog published on 11 April 2019 (Social Media Misuse), I discussed the story about Israel Folau, the Australian rugby player who had posted homophobic comments on social media. Folau has now been dismissed by Australia for these remarks.

Please see a link to the story on the Sky News website:

Israel Folau: Australian rugby star sacked over anti-gay social media post
http://news.sky.com/story/israel-folau-australian-rugby-star-sacked-over-anti-gay-social-media-post-11721930

The employer must, of course, be able to prove reasonably that the employee’s misuse of social media will cause it to suffer reputational damage.

In Taylor Somerfield Stores Ltd ETS/107487/07 an employee was dismissed after posting a video on Youtube which involved a mock fight using Somerfield carrier bags in the work place. The video was uploaded to Youtube for a mere 3 days and only 8 people had viewed it – 3 of whom were managers conducting the disciplinary investigation. The Employment Tribunal was firmly of the view that the dismissal was unfair because the employer was not able to prove that it had suffered serious reputational damage.

As I have emphasised in previous blogs, employees will be very naive if they think that it is a competent defence to say that the social media posts occurred outside working hours. Employers are still very much entitled to treat such behaviour as an example of a breach of work place discipline. In serious cases of social media misuse, employers will be entitled to consider dismissal of employees on the grounds of misconduct (as per Section 98(4) of the Employment Rights Act 1996).

Admittedly, this area represents something of a tightrope for employers to walk: they will have to operate a clear and comprehensive social media policy and employees must be made aware of any restrictions or expectations.

In the unreported Employment Tribunal decision of Grant and Ross Mitie Property Services Ltd (2009), the employer had a policy which restricted employee internet access. Unfortunately, for the employer, the phrase which permitted employee’s personal use of the internet to times that were “outside core working hours”, was deemed by the Tribunal to be ‘vague’ and lacking in certainty. This meant that the employees who had been dismissed because the employer was of the view that they had breached its policy on internet use had been unfairly dismissed.

There is also the matter of the rights that employees reasonably have to privacy and freedom of expression (as per their Article 8 and 10 rights respectively to be found in the European Convention, the Human Rights Act 1998 and the Scotland Act 1998) (see Bărbulescu v Romania Application no. 61496/08 5 September 2017; and Smith v Trafford Housing Trust [2012] EWHC 3221 (Ch)).

I have also pointed out in previous blogs, the importance for employers in carrying out disciplinary proceedings which comply with current ACAS Guidance. Using the (current) ACAS Guidance is a critical risk management exercise for employers:

https://beta.acas.org.uk/investigations-for-discipline-and-grievance-step-by-step

Employers who act recklessly or swiftly and ignore proper procedures may well have cause to regret their actions down the road. As Sir Robert Megarry VC, the eminent English judge, remarked decades ago in John Rees [1970] 1 Ch 345:

When something is obvious, they may say, why force everyone to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard?As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; …

The above remarks are as valid in 2019 as they were in Sir Robert Megarry’s day.

Atherton v Bensons Vending Ltd ET/2411749/2018

This is a recent decision of the Manchester Employment Tribunal which raises some very interesting issues about employee use of social media specifically and the conduct of disciplinary proceedings more generally.

Darren Atherton (aged 55) worked for Bensons Vending Ltd, a small company. As a result of his employer making changes to its discretionary Christmas bonus scheme, Atherton made some very negative comments about the company’s Managing Director, Ken Haselden via a colleague’s Facebook page:

Comment 1

We’ve all just bought Ken a new dog with our Christmas bonus!!!”

Comment 2

“He spends a few grand on a new dog then we get told ‘no bonus this year’ but we can have a bottle!!! 

Comment 3

“Well, he can stick his bottle where the sun doesn’t shine because I refuse to be insulted in this way!!!

Atherton’s colleague, Simon Minshull had initially objected to the changes to the bonus scheme by posting comments on his Facebook page:

Comment 1

Just when you thought staff morale couldn’t get any worse, hey f***ing presto #insult #disgusted.”

Comment 2

The only difference between McDonalds and where I work is McDonalds has only one clown running the show.” (This second comment was accompanied by a picture of Ronald McDonald).

The changes to the bonus scheme were part of a cost cutting and efficiency savings exercise by the company and, from any reading of the above comments, Atherton and Minshull clearly disagreed with this new approach by their employer.

Negative remarks about the Managing Director were also made by Atherton and another colleague in the workplace. Several colleagues informed Haselden about these remarks stating that they had been very aggressive and vitriolic in nature.

Atherton’s colleague, Simon Minshull, was subsequently questioned about the posts on his Facebook account by Haselden. Minshull stated that he did not agree with them – they were Atherton’s opinions – and he apologised for any offence caused to Haselden. He was later suspended for the Facebook posts, but critically this suspension was lifted in the light of his swift apology to Haselden (and the fact that it was established that he had not made these comments). Minshull was permitted to return to work upon the conclusion of the disciplinary proceedings against him.

Atherton was called to a meeting with Mr Haselden in December 2017 to address the allegations which had been made against him and to investigate the social media posts. This was not a disciplinary meeting, but more in the way of an investigatory meeting. The actual disciplinary meeting took place in January 2018.

Dismissal without notice pay

The outcome of the disciplinary meeting was that Atherton should be dismissed without notice pay for gross misconduct in terms of Section 98(4) of the Employment Rights Act 1996. This was despite the fact that Atherton had a clean disciplinary record (until now) and had enjoyed a good relationship with his employer. Atherton’s comments on Facebook were “extremely derogatory” and Mr Haselden stated that he would find it “extremely difficult” to continue working with him. Atherton appealed against his dismissal, but the decision was upheld.

The fairness of the disciplinary proceedings

As part of his claim against the employer, Atherton challenged the fairness of the disciplinary proceedings taken against him. In particular, he objected to the fact that Haselden conducted the disciplinary meeting against him. Atherton’s contention was that he would not receive a fair hearing because Haselden was personally involved in the matter and, therefore, could not be relied upon to act objectively. This type of issue frequently arises where smaller employers are concerned. In an ideal world, a manager (such as Haselden) who has been involved personally in an issue involving alleged breaches of work place discipline should not be a participant in the disciplinary panel. This is, of course, easier in practice to ensure in larger organisations where there is a pool of experienced managers who will have had no personal involvement in the matter (or in other words: a particular axe to grind).

The appeals process

In situations involving smaller employers, this is where the appeals process takes on a critical significance. Appeals can often be used to cure actual or perceived defects in the conduct of the original disciplinary meeting. Although Haselden (with two others – an operations manager and a company engineer) had conducted the disciplinary meetings, he had not involved himself in the actual appeals hearing. This part of the company’s disciplinary procedure had been conducted by a Ms Pedley, a trained auditor and, as stated, above, Atherton’s dismissal was upheld.

At this point, Atherton also raised the difference in treatment between himself and Simon Minshull (who had kept his job after disciplinary proceedings against him had been concluded). Pedley refused to comment on individual cases on the grounds of confidentiality. She stated in her letter to Atherton upholding the dismissal that:

Length of service and clean disciplinary record are taken into consideration during all grievance procedures. However, given the
nature of the comment and the reluctance to remedy the grievance the
relationship between yourself and senior management has broken down
irretrievably”.

The Employment Tribunal’s decision

The Tribunal held that Atherton had been fairly dismissed in terms of Section 98(4) of the Employment Rights Act 1996.

He had made extremely derogatory comments via Facebook about Haselden. They were “personal” and they suggested “some impropriety” on Mr Haselden’s part (though more in the nature of “penny-pinching impropriety” suggesting Scrooge like behaviour rather than any financial misdeeds). Any member of the public who knew the company and reading Atherton’s comments on Simon Minshull’s Facebook site, would have a very negative view of Haselden. It was accepted by the Tribunal that Haselden would, therefore, potentially suffer reputational damage. It was also accepted that in a small company, it would be very difficult for Atherton and Haselden to work with one another again (the employment relationship had irretrievably broken down).

The Tribunal also addressed Atherton’s claim that the disciplinary procedure had been biased or lacking in objectivity because of Haselden’s involvement in the decision to dismiss him from employment. This indeed could have been a problem for the employer and may have prejudiced proceedings against Atherton. That said, however, the saving grace for the employer was the fact that Ms Pedley had been kept in reserve for an appeal hearing.

The Employment Tribunal Judge made the following observations about Pedley’s involvement in the appeal stage:

Ms Pedley is by profession an auditor and had clearly gone through the matters in great detail. Notes (page 95 and onwards) show how she dealt with the matter. … Because of that safeguard of the deployment of Ms Pedley, who I am satisfied went about her task objectively and exhaustively and independently, although regrettably for the claimant she came to the same conclusion, I am not satisfied that the determination by Mr Haselden at the dismissal stage rendered the dismissal unfair. The appeal was thorough, it was a re-hearing. Ms Pedley considered all the points that were being raised and came, I am satisfied, to an independent conclusion.”

As for the difference in outcomes between Atherton and Simon Minshull, a key justification for this was that Minshull had “apologised shortly after being challenged regarding his Facebook comments even though he had been suspended.” This was something that Atherton had failed to do – apologising only at the disciplinary meeting in January 2018. Furthermore, it was significant that the nature of Atherton’s comments were specifically directed against Haselden, whereas Minshull’s comments (although also negative) were much more generalised.

The failure to pay notice pay

This was an aspect of the employer’s decision that the Employment Tribunal disagreed with. Atherton, therefore, had a right to receive his entitlement to notice pay. In this sense, he had been wrongly dismissed by his employer. The Employment Tribunal judge stated very clearly that in order for an employee to lose his entitlement to notice pay there the employer must be able to demonstrate that the gross misconduct complained of crosses over a “very high hurdle”. In the judge’s opinion, the employer had not been able to overcome this hurdle and, therefore, Atherton was entitled to claim notice pay.

A link to the Employment Tribunal’s judgement in Atherton Bensons Vending Ltd can be found below:

https://assets.publishing.service.gov.uk/media/5c4712dfe5274a6e6b6716e1/Mr_D_Atherton_v_Bensons_Vending_Limited_-_2411749_2018_-_Reasons.pdf

Conclusion

What have we learned about the decision of the Employment Tribunal in Atherton Bensons Vending Ltd?

Quite a lot actually:

  1. Employees will have to be extremely careful when posting material or comments on social media platforms – irrespective of whether this is about the employers or not.
  2. The case is yet another good example that misconduct committed inside or outside the work place or working hours can have reputational consequences for the employer. It can also lead to relationships in the work place breaking down irretrievably (especially in smaller organisations).
  3. Employers do not have a free hand to police employee use of social media. There must be clear guidelines laid down by the employer as to what constitutes acceptable and appropriate behaviour. At the same, employees have reasonable expectations that their rights to privacy and expression (as per the European Convention on Human Rights) will be upheld.
  4. The conduct of disciplinary proceedings by the employer is a critical issue. We have noted that potential conflicts of interest can occur in smaller employers or organisations where a manager can be investigator, dismissing officer and appeals officer. How does the employer address these issues and ensure objectivity in the disciplinary process?
  5. As with Atherton and Minshull, the employer was entitled to treat them differently: Atherton was dismissed while Minshull retained his job. There was nothing inconsistent or inherently unfair about this when the personal circumstances and behaviour of the two employees was examined.
  6. Finally, even in situations where gross misconduct has been proved by the employer, and the dismissal is deemed to be fair (in terms of Section 98(4): Employment Rights Act 1996), it will not necessarily mean that the employee loses his or her right to notice pay. The employer will have to overcome an extremely high hurdle in order to be entitled to invoke such a disciplinary sanction. As we have seen in Atherton, the Tribunal was not convinced that the employer had been able to prove that this was an appropriate punishment: the dismissal was fair; the failure to pay notice was not.

Copyright Seán J Crossan, 20 May 2019

Don’t do it!

george-pagan-iii-624417-unsplash.jpg

Don’t do what? Get pregnant, it would seem if you’re a female athlete who receives sponsorship from one of the planet’s most visible sporting brands.

Just this week, allegations have been made by a number of female athletes that Nike withdrew sponsorship after they discovered that they were pregnant.

Now, if the allegations are true, this would certainly represent an example of unlawful, less favourable treatment. Pregnancy and maternity discrimination are prohibited in terms of Sections 17 (non-work cases) and 18 (work cases) of the Equality Act 2010. They are very specific forms of sex discrimination (a person’s sex or gender is a protected characteristic in terms of Section 11 of the Act).

In 2019, you might have been forgiven for thinking that pregnancy discrimination was a thing of the past…

The Sex Discrimination Act 1975

The (now repealed) Sex Discrimination Act 1975, which was held up as a significant advance for woman’s equality, was fundamentally flawed when it addressed the issue of pregnancy and maternity discrimination.

When the Act of 1975 was first introduced, cases involving alleged discrimination connected to a woman’s pregnancy encountered an unexpected problem, which the Parliamentary draftsmen had not taken into account: how could it be valid to attempt a comparison between that of a pregnant woman’s situation with that of a man? A strict application of the legislation meant that this was not a valid comparison and, therefore, many of the earliest sex discrimination claims failed because some judges applied the literal approach to the interpretation of the Act – even if this made the law something of an ass and, more seriously, led to blatant injustice.

This Act made it very clear that central to the success of any claim was the complainant’s ability to compare his or her allegedly less favourable treatment to an actual or hypothetical male/female comparator. If he or she could not do this, the claim would fail. A woman claiming that she had suffered discrimination on the grounds of her sex must have been able to carry out a like with like comparison.

The woman’s circumstances and those of her male comparator must have been broadly the same (they should not have been materially different) otherwise a meaningful comparison could not be made.

The European Union

This situation really continued into the 1990s and, it was only when the Court of Justice of the European Union resolved the matter in Dekker v Stichting Vormingscentrum voor Jonge Volwassen Plus (1991), that things started to improve. Dekker clearly established that there was no requirement for pregnant women to identify a male comparator when they were alleging that they had experienced unlawful, less favourable treatment.

The Equality Act 2010 now, in theory, affords pregnant women and mothers much stronger legal protection than the Sex Discrimination Act 1975 ever did, but yet examples of pregnancy and maternity discrimination still arise.

It was as recently as 2016 that the Equalities and Women Committee of the House of Commons exposed the shocking extent of pregnancy and maternity discrimination in the UK. Maria Miller MP, chair of the Committee stated:

Our 2016 report laid bare the significant discrimination and poor treatment faced by 54,000 pregnant women and mothers at work each year.”

A link to the Committee’s Report can be found below:

https://www.parliament.uk/business/committees/committees-a-z/commons-select/women-and-equalities-committee/news-parliament-2017/pregnancy-maternity-discrimination-2-statement-17-19/

Just do it?

Being deadly serious, the above slogan (of Nike) will hardly sit well with those female athletes in receipt of sponsorship from the company. That said, should we really be surprised that stories of this nature emerge when read against the Report of the Women and Equalities Committee?

A link to the article about alleged pregnancy discrimination as reported by Sky News can be found below:

Pregnant athletes ‘punished’ by Nike, says champion British runner Jo Pavey
http://news.sky.com/story/pregnant-athletes-punished-by-nike-says-champion-british-runner-jo-pavey-11721817

In 2018, Nike was praised for endorsing Colin Kaepernick, the former African American Football star who had actively campaigned to raise awareness of racial inequality. Now with these sex discrimination allegations, is it a case of one step forward, ten steps back for Nike?

Copyright Seán J Crossan, 17 May 2019

The biased arbiter?

Photo by Tim Gouw on Unsplash

Parties to a civil legal dispute may not wish to go to court or a tribunal for a variety of different reasons e.g. adverse publicity; commercial secrecy; or the negative impact on a company’s share value. Instead, as an effective alternative, they may wish to use the services of a neutral third party to help them resolve the disputes. In these situations, the parties often make the choice of taking responsibility for dispute resolution upon themselves rather than relying upon a court which will impose its own judgement.

In a commercial dispute, the parties may wish to use an arbitration procedure to come to some sort of agreement. Arbitration allows the parties to appoint a neutral person, known as an arbiter in Scotland (arbitrator in England), who will hear both sides of the argument and who will then suggest a solution which hopefully will be broadly acceptable to both sides. The mechanism for appointing an arbiter is simple. The parties may have anticipated a dispute occurring and they have taken steps to address this by inserting an arbitration clause in the contract that they have formed with one another.

An example of such a clause can be found below:

ARBITRATION CLAUSE

Any dispute or difference arising out of or relating to this contract, its interpretation or the breach thereof, shall be settled by arbitration before an Arbiter selected and appointed by the President or Vice-President for the time being of the Law Society of Scotland from the panel of Arbiters maintained by the Law Society of Scotland and conducted in accordance with the Arbitration Rules of the Law Society of Scotland current at the date of the appointment of the Arbiter; and we consent to registration hereof for preservation and execution.

Alternatively, when a dispute first arises, the parties may agree to use arbitration instead of the courts. Once the parties have chosen arbitration over the courts, they are committed to this procedure and they cannot withdraw unless the arbitration process is seriously flawed (to which I shall return later in this blog).

Arbitration is not permitted, however, in criminal matters or in family law (divorce, separation or custody of children). Arbitration is often preferred in business as it is private (as opposed to public court hearings); it might be faster than using the courts; it may be less expensive than court; and the parties can decide the most appropriate procedures that will be used.

The Advisory, Conciliation and Arbitration Service (ACAS) promotes the extensive use of arbitration to resolve many disputes which have legal consequences.

Arbitration can even be used when a legal dispute has gone to court or a tribunal. In a simple procedure action in the Sheriff Court, for example, the Sheriff has a duty to make enquiries of the parties in dispute as whether they are willing to consider the option of having the claim referred to an independent expert (an arbiter) whose decision in the matter is final. Usually, the Sheriff will give the litigants this choice when they meet formally for the first time in court. Once the litigants have decided that they wish to have the matter decided by an independent expert, they cannot later choose to ask the Sheriff to become involved in the case.

What if the arbiter (or arbitrator in England) was deemed to be biased in favour of one of the parties in the dispute? I often use this an example where the outcome of the arbitration proceedings could be challenged in court. Whether the bias is actual or where there is a perception of bias, it does not really matter because the parties to the dispute must have complete confidence in the neutrality and objectivity of the arbiter (or panel of arbiters).

The issue of the perception of bias on the part of an arbiter arose in the following case which was dealt with by the English High Court (Queen’s Bench Division):

Cofely Limited v Bingham & Knowles Limited [2016] EWHC 240 (Comm) Cofely objected to the continued involvement of Bingham as an arbitrator in a commercial dispute in the construction industry involving the provision of energy services to the Olympic Park and Westfield Shopping Centre in Stratford, London.

Bingham’s action was raised under Section 24(1)(a) of the Arbitration Act 1996 (which applies in England and Wales) on the grounds that Bingham was perceived by Cofely not to be sufficiently impartial. On the face of it, Bingham was a highly experienced arbitrator and adjudicator (being a qualified barrister of many years standing).

The main thrust of Cofely’s objections to Bingham’s involvement in proceedings was that it had emerged that there appeared to be a sufficiently close working relationship between Bingham and Knowles Limited. It was established that Bingham had received 18% of his arbitral appointments and 25% of his income from disputes involving Knowles Limited. Cofely had wanted to find more information about the exact nature of the relationship between Bingham and Knowles, but when this topic had been raised during arbitration proceedings, the arbitrator refused to provide satisfactory answers to these questions. In fact, Bingham was later accused of conducting himself “aggressively and in a hostile manner” which did nothing to reassure Cofely in respect of its concerns about his objectivity and neutrality – which a truly independent arbitrator should be displaying.

Held: by Mr Justice Hamblen sitting in the English High Court that, if Bingham did not voluntarily resign from further involvement in arbitration proceedings, an Order would be issued by the court removing him from his role. It was found

As Mr Justice Hamblen wisely stated:

Where there is actual or apparent bias there is also substantial injustice and there is no need for this to be additionally proved …

It is important to note that this case concerns the perception of bias rather than actual bias on the part of Bingham towards Knowles Ltd. It is essential to appreciate that a party involved in arbitration proceedings (such as Cofely) is absolutely entitled to demand that there should be complete confidence in an arbitrator’s (or arbiter’s) impartiality. Significantly, the judge did find that no bias concerning the making of a Partial Award and the conduct of the arbitration had been fair up until the point at which Cofely had started to make enquiries about the precise nature of Bingham’s relationship with Knowles Ltd.

Or … if we want to paraphrase a well known saying attributed to Julius Caesar: an arbiter/arbitrator must be like Caesar’s wife – above suspicion.

A link to the High Court’s judgement in Cofely Limited v Bingham & Knowles Limited [2016] EWHC 240 (Comm) can be found below:

https://www.trans-lex.org/312060/_/cofely-limited-v-anthony-bingham-et-al-%5B2016%5D-ewhc-240-/

Copyright Seán J Crossan, 14 May 2019

Inequality in the UK

Photo by Søren Astrup Jørgensen on Unsplash

So much for equality of opportunity in 21st century Britain. It looks as if this country is becoming more unequal, if the latest research is to be believed.

True, we have legislation such as the Human Rights Act 1998; the Equality Act 2010; and EU legal principles such as (Article 157) of the Treaty on the Functioning of the European Union (TFEU) which embed anti-discrimination laws. Parliaments and the EU can pass all manner of laws, but this of itself does not guarantee the conditions of true equality to flourish. Equal pay laws have been in force since 1975 in the UK, but tell that to Glasgow City Council female employees who had to struggle every step of the way to win their battle for pay equality in January 2019.

Since the inception of the Scottish Parliament in 1999, Scottish Governments have introduced various initiatives to tackle the scourge of child poverty. The latest attempt can be found in the Child Poverty (Scotland) Act 2017 which aims to combat some of the causes of this problem by 2030. In a recent blog (Food for thought? published on 16 April 2019) I discussed the suggestion, in a report by the Scottish Human Rights Commission, that the right to food security should be recognised as a fundamental human right. This proposal was made against a background of increased use of food banks in Scotland.

Everywhere you go organisations proclaim their commitment to equality and diversity and, if you take things at face value, you might allow yourself to be fooled into thinking that great progress is being made.

We can have a plethora of events such as Black History Month; Disability Awareness Month; World AIDS Day; International Women’s Day; and Day Against Homophobia, Transphobia and Biphobia, but if they are to be judged in any way successful they must lead to real change.

And yet … something is clearly not working when the UK Government’s own Social Mobility Commission concludes (in its latest Report) that levels of inequality in this country remain stubbornly persistent.

Now, the Institute of Fiscal Studies has weighed in with its own take on the matter. Professor Sir Angus Deaton will chair a Review which will examine the causes of inequality in modern Britain. The Institute of Fiscal Studies, a leading UK Think Tank, has stated that rising levels of inequality and exclusion threaten the very foundations of democracy in this country.

In April 2010, Nick Clegg, then Leader of the Liberal Democrats, trumpeted his Party’s manifesto commitment which would ensure that fairness was ‘hardwired’ into British society. I wonder if, from the comfort of his executive office at Facebook HQ in Silicon Valley, Mr Clegg now sees his time as UK Deputy Prime Minister (2010-15) as a wasted opportunity?

In her column in last Saturday’s edition of The Independent, Janet Street Porter spoke of the lack of diversity at the BBC as a working class person

… who managed (against all the odds) to make a living out of working for the BBC, an organisation where (even in 2019) the over-educated and middle class dominate. We’re proof that in modern Britain, social mobility still moves at a glacial pace. …

… For all the BBC trumpets its ethnic, gay and gender-fluid presenters, one category is conspicuously absent on the radio and television – white working class people.”

This inequality can be traced from “birth to work” according to the Social Mobility Commission’s findings:

“In this our sixth State of the Nation report we lay bare the stark fact that social mobility has stagnated over the last four years at virtually all stages from birth to work. Being born privileged in Britain means that you are likely to remain privileged. Being born disadvantaged, however, means that you will have to overcome a series of barriers to ensure that you and your children are not stuck in the same trap.

At a time when our country needs to be highly productive and nimble we impede our own progress as a nation if we do not maximise the talent of all our citizens – especially those that start the furthest behind. We fail if we do not make it possible for every individual to have choices about where they go and what they do in life.

This report shows that more needs to be done to support the most vulnerable. Our analysis finds that, too often, well intentioned policies fail to reach those who would benefit most, while cuts to other provisions disproportionately impact the most vulnerable.

Clearly a lot still has to be done to make the UK a fairer society.

A link to the Social Mobility Commission’s Report can be found below:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/798404/SMC_State_of_the_Nation_Report_2018-19.pdf

A link to the Institute of Fiscal Studies’ website can be found below:

Home

Copyright Seán J Crossan, 13 May 2019

Veganism = Discrimination?

Photo by Ivana Milakovic on Unsplash

Regular readers of this Blog will be aware that several of my previous articles have examined whether veganism could be a protected characteristic (a philosophical belief) in terms of Section 10 of the Equality Act 2010.

We still await the decision of the London Employment Tribunal in relation to the case of Jordi Casamitjana v League Against Cruel Sports (lodged in December 2018) which will give us a first indication as to whether veganism is capable of being a protected characteristic in terms of the Equality Act.

A link to an article on the BBC website about Mr Casamitjana’s claim can be found below:

I saw this on the BBC News App and thought you should see it:

Sacked vegan claims discrimination in landmark case

A landmark tribunal will decide whether veganism is a “philosophical belief” akin to a religion.

In the meantime, Crossland Solicitors (an Oxfordshire based law firm) have carried out some really interesting research concerning the issue of vegan beliefs and work-place discrimination.

Nearly 1,000 employees and 1,000 employers took part in the research. The conclusions from this exercise are that nearly 45% of employees are of the opinion that they have experienced less favourable treatment due to their beliefs and nearly a third of respondents felt that they had been actively victimised by their employers because of their veganism. It seems to be the case that a large number of employers take the view that veganism is a fashion trend or a fad as opposed to an ethical and philosophical set of views which guides people in their daily lives.

Hopefully, the London Employment Tribunal will issue it’s decision in the very near future about Mr Casamitjana’s claim in order to provide some needed clarity to this area of the law.

A link to the research on Crossland’s website can be found below

https://www.crosslandsolicitors.com/site/cases/nearly-half-of-vegans-feel-discriminated-against-at-work

Copyright Seán J Crossan, 12 May 2019

How dare you mention my age!

Photo by Elena Saharova on Unsplash

The above picture may conjure up blissful images of a well deserved retirement, but the reality can be very different for many older employees and workers. Financial necessity and a higher state pension age may mean that many individuals will have to remain in work for much longer than they would like.

In October 2011, the UK Parliament issued a PostNote entitled “An Ageing Workforce” which made the following observations in its introduction:

Over the next decade, the changing age profile of the workforce will be the most significant development in the UK labour market, as a third
of workers will be over 50 by 2020Employers will be expected to respond to this demographic shift by making work more attractive and feasible for older workers, enabling them to work up to and beyond State Pension Age (SPA) if they are capable.”  

Significantly, this PostNote went on to state:

Within 20 years, nearly a quarter of the UK population will be aged 65 or over. People are now spending an average of 7 years longer in retirement than in the 1970s …

A link to this PostNote can be found below:

https://www.parliament.uk/pagefiles/504/postpn391_Ageing-Workforce.pdf

Not much has changed for the better it would seem. Some 7 years later, the above conclusions would also be mirrored by a Report issued by the Women and Equalities Committee of the House of Commons on 17 July 2018 which stated:

“The talents of more than a million people aged over 50 who want to work are being wasted because of discrimination, bias and outdated employment practices. … Government and the Equality and Human Rights Commission (EHRC) are failing to enforce the law on age discrimination and must be clearer that prejudice, unconscious bias and casual ageism in the workplace are all unlawful under the Equality Act 2010.”

A link to the Committee’s Report can be found be found below:

https://www.parliament.uk/business/committees/committees-a-z/commons-select/women-and-equalities-committee/news-parliament-2017/older-people-employment-report-published-17-19/

It’s all very well going on about the need for people to work beyond state pension age, but what if older employees and workers find themselves being actively discriminated against by employers? What rights (if any) do they have? Admittedly, age discrimination is not just problem for older people; younger people can often find themselves victims of this type of discrimination (see Hutter v Technische Universität Graz (2009)). 

Age discrimination in the news

I was thinking about unlawful age discrimination this week after reading a story on BBC Northern Ireland’s website. It was reported that the Arts Council of Northern Ireland had been sued by its former Chief Executive, Roisin McDonough who was alleging age discrimination. Ms McDonough has now settled her claim with the Arts Council for £12,000. It was alleged by Ms McDonough that the issue centred around the failure by the Arts Council to consider giving her the option of flexible retirement arrangements. She had requested that she be allowed to work 4 days instead of 5 from 1 April 2017. Apparently, this request was never dealt with properly and Ms McDonough was subsequently asked to name a date when she intended to leave her employment. 

A link to the BBC Northern Ireland article can be found below: 

Age discrimination: Arts chief Roisin McDonough awarded £12,000

Roisin McDonough claimed the Arts Council had discriminated against her because of her age.
 

 

The Equality Act 2010

It was only with the introduction of the Employment Equality (Age) Regulations 2006 that unjustified age discrimination became illegal across the UK. Please note that I have deliberately used the word ‘unjustified’ in my first sentence because there can be situations where discrimination on the grounds of a person’s age can be be quite lawful (more about that later in this blog). 

The 2006 Regulations have now been replaced by the Equality Act 2010. For dedicated Brexit followers, these Regulations were introduced because, in 2000, the European Union passed Council Directive 2000/78/EC of 27 November 2000 which established a general framework for equal treatment in employment and occupation. Interestingly, this Directive also spawned new legal protection in relation to a person’s sexual orientation and religion and belief. Admittedly, the scope of the Directive was limited to the area of employment. It did not cover these types of discrimination in relation to the provision of goods and services. 

We have since moved on and many of the key principles of the Directive are now to be found in the Equality Act 2010. 

Section 5 of the Equality Act states that in relation to the protected characteristic of age:

(1) (a) a reference to a person who has a particular protected characteristic is a reference to a person of a particular age group;

(b) a reference to persons who share a protected characteristic is a reference to persons of the same age group.

(2) A reference to an age group is a reference to a group of persons defined by reference to age, whether by reference to a particular age or to a range of ages.

It is, therefore, unlawful for employers and service providers to discriminate against an individual on the grounds of that person’s age. Employers must be particularly careful in relation to recruitment policies and procedures, terms and conditions of employment, promotion and training opportunities and termination of the employment relationship. Practically speaking, this will mean that employers will have to be especially careful when recruiting workers to their organisations.

Any advertisements or recruitment criteria which seem to suggest a preference for one age category over another should be discouraged – unless there is a sound legal reason for this. It’s probably very unwise for recruiters to use phrases like ‘Mature person sought for post’; ‘Dynamic individual preferred’ or ‘Youthful enthusiasm’ or ‘Are you still hungry enough to succeed?’ (see Canadian Imperial Bank of Commerce v Beck 2010; McCoy v James McGregor and Sons Limited and others 2007; and Hutter v Technische Universität Graz (2009)).

That said, there are situations where the law will permit differences in treatment based on a person’s age. The National Minimum Wage Act 1998 and the associated Statutory Regulations, for example, continue to operate meaning that workers can be paid different minimum and living wage rates depending on their age. In situations involving redundancy, those employees with 2 or more years’ continuous service will be entitled to receive a statutory redundancy payment. It is very likely that older employees may have longer service than their younger colleagues and will, therefore, be better off financially under the employer’s redundancy arrangements.

A case where an employer attempted unsuccessfully to justify direct age discrimination occurred in O’Reilly v (1) BBC & (2) Bristol Magazines Ltd (2010) Miriam O’Reilly, a very experienced and well regarded radio and television journalist, lost her job as one of the main presenters of the BBC’s popular Countryfile television programme (which has been broadcasting since 1989 until the present day). Ms O’Reilly was then 51 years of age. This was part of a strategy by the BBC to appeal to a much younger audience. The new presenters who had been recruited to work on the programme were all in their 30s. 

Held: by the Employment Tribunal (unanimously) that O’Reilly had been subjected by the BBC to direct age discrimination and that the BBC and Bristol Magazines Ltd had subjected her to age victimisation. Claims for sex discrimination were not proved. The Tribunal was strongly of the opinion that had O’Reilly been 10 or 15 years younger, she had would have been in a strong position to retain her presenting post on the programme. In fact, it was heard during the evidence that the BBC had considered offering Michaela Strachan (a well known television presenter who had guest presented on the show) a permanent presenting job. Strachan was then aged 42 as opposed to O’Reilly who was 51. 

Health and safety considerations might seem like a fairly straightforward way of justifying age discrimination in relation to certain jobs which rely on the person displaying a high level of technical competence e.g. an airline pilot, but employers will have to be very careful here that they do not use this issue as a blunt instrument as the Court of Justice of the EU decided in Case C-447/09 Prigge and Others v Lufthansa [2011].

In Prigge, Lufthansa, the German national airline operated a compulsory retirement age of 60 for its pilots. Prigge and a number of other pilots who had either reached or were approaching this age, objected to the policy on the grounds that it was an example of age discrimination. Lufthansa, amongst other things, argued that the policy could be objectively justified on the grounds of health and safety.

Held: by the Court of Justice that Lufthansa’s mandatory retirement age of 60 could not be objectively justified and was not a proportionate means of achieving a legitimate aim. The airline had committed unlawful discrimination on the grounds of age by operating the compulsory retirement age.

For many years, the UK in common with many other EU member states permitted employers to operate compulsory retirement ages. Until 2011, the default UK retirement age for both men and women was 65. This has now been abolished and people have the right to request that they permitted to work on. 

As a consequence of major demographic change i.e. a rapidly ageing population in this country, it will be necessary for people to work for longer than previous generations. A person’s entitlement to receive a state and/or occupational pension scheme has been raised to 66 years of age if you intend to retire by October 2020 (and then to age 67 between 2026 and 2028). These projections may still be overly optimistic given the UK’s demographic time bomb and, in 2016, the Independent Review of Retirement Income, chaired by Professor David Blake of Cass Business School, submitted that people would have to work into their seventies in order to avoid hardship and poverty in their old age. This research was also supported by a study by Royal London which suggested a retirement age of 77!  

The Court of Justice of the European Union gave cautious approval to the UK’s then default or mandatory retirement age of 65 (see Incorporated Trustees of the National Council on Ageing (Age Concern England) v Secretary of State for Business, Enterprise and Regulatory Reform (2009)). Compulsory retirement ages set by EU member states were essentially a proportionate means of achieving a legitimate aim i.e. the orderly management of a country’s labour market and the opening up of employment opportunities for younger people.

Having said that, with the abolition of the UK’s default retirement age, employers will still have to be careful how they handle the issue of older employees. Requests to continue working by those individuals in the older age demographic will have to be considered seriously by employers. Employers may be justified in refusing to continue employment if they can demonstrate that an older employee falls short of a basic (objective) standard of mental or physical abilities required to perform the job; or in situations where the law lays down the retirement age. Finally, we should also be aware that younger people can also be the victims of age discrimination. 

ACAS Guidance on Age Discrimination

In March 2019, ACAS helpfully produced new guidance on how to prevent age discrimination in the workplace.

Some of the ACAS examples can be found below:

Example 1 – Ordinary direct discrimination (Section 13: Equality Act 2010)

Manager Louise is looking to fill a role which will require the successful applicant to then complete difficult training. She instructs her HR manager to discount her team’s younger members, presuming they will not want the hard work. She also tells HR to discount older members, thinking they will not adapt to the change. Instead she shortlists Bruce and Mikel, believing people in their mid-thirties are more likely to have the necessary blend of ambition and sense of responsibility. Her actions are likely to be discriminatory.

Example 2 – Direct discrimination by association (Section 13: Equality Act 2010)

Senior manager Jurgen decides not to invite employee Sarah and her partner Claude to a business party because Claude is much older than her. Jurgen feels Claude would not fit in with the party mood. This is likely to be discriminatory.

Example 3 – Direct discrimination by perception (Section 13: Equality Act 2010)

Siobhan is turned down for a supervisor’s job because her bosses decide she does not look mature enough for the role. They think she looks about 20. In fact, she is 30. Her bosses’ decision is likely to be discriminatory.

Example 4 – Indirect discrimination (Section 19: Equality Act 2010)

City centre gym manager Esme tells employees she needs two more staff to work on reception. She adds that anyone interested needs to look ‘fit and enthusiastic’ as the gym is trying to encourage more young people to join. Her requirement may indirectly discriminate against older staff unless it can be objectively justified.

Example 5 – Harassment (Section 26: Equality Act 2010)

Sixty-year-old Margaret feels humiliated and undermined at the store where she works because of her age. Despite her extensive experience in retailing and recently gaining a qualification as a visual merchandiser, her manager Darren regularly tells her in front of other staff that she is ‘out of touch’ and that the store needs ‘fresh blood’. Darren’s behaviour is likely to be harassment.

Example 6 – Victimisation (Section 27: Equality Act 2010)

Manager Alan tells apprentice Reyansh he is happy with his progress and performance. Reyansh then feels confident enough to tell Alan that some of the older employees regularly make fun of him because of his age and play pranks such as leaving toys where he’s working. Reyansh wants this to stop. Alan tells Reyansh to toughen up and that the firm has no time for complainers. Some weeks later Alan punishes Reyansh for complaining by cancelling his training course. This is likely to be victimisation.

The ACAS Guidance can be accessed using the link below:

http://m.acas.org.uk/media/pdf/o/1/Age_discrimination_key_points_for_the_workplace.pdf

Copyright Seán J Crossan, 9 May 2019

Get me an Uber!

Photo by Thought Catalog on Unsplash

An interesting story today about industrial action being taken by taxi drivers working for Uber. The action is taking place in the USA and in cities across the UK (including Glasgow). It is designed to draw attention to working practices within the company before it lists its shares on the New York Stock Exchange.

Quite a few of my previous blogs have looked at employment status and the steady increase in the number of individuals who provide services to organisations but, critically, not under the traditional employment contract model.

Section 230(1) of the Employment Rights Act 1996 contains the definition of who precisely is an employee i.e. someone who has a contract of service. If you don’t have this type of contractual arrangement (you’re not an employee), you may well be working under a contract for services. This is one of the most important distinctions in employment law in the United Kingdom.

Those individuals working under a contract for services – precisely because of their lack of employment status – are often denied access to the sorts of legal rights which employees routinely take for granted e.g. unfair dismissal protection, redundancy protection, family friendly rights, rights to information and consultation etc.

Admittedly, employees will not acquire these rights from day 1 of their employment, but the critical difference in relation to people working under a contract for services is that they have the potential to obtain employment rights (by completing the requisite period of continuous service e.g. 2 years’ continuous service for entitlement to protection against unfair dismissal and for entitlement to a redundancy payment.

There’s now a growing awareness on both the part of the UK Government (The Taylor Review) and the European Union (the forthcoming EU Directive on Transparent and predictable working conditions) that people on contracts for services deserve greater levels of work-place protection.

The industrial action being taken by Uber drivers today is principally an attempt by these types of workers to secure better contractual terms and conditions. The law does now appear to be recognising that individuals working for organisations such as Uber (and Lyft) are not genuinely self-employed persons. Rather they should be categorised as workers with an entitlement to a basic level of legal protection (see the English Court of Appeal’s decision in Uber BV & Ors v Aslam & Ors [2018] EWCA Civ 2748 on appeal from UKEAT/0056/17/DA).

A link to the Aslam judgement can be found below:

https://www.judiciary.uk/wp-content/uploads/2018/12/uber-bv-ors-v-aslam-ors-judgment-19.12.18.pdf

A link to an article on the BBC website about the industrial action can be found below:

https://www.bbc.co.uk/news/business-48190176

Copyright Seán J Crossan, 8 May 2019