In June 2019, I wrote an article which has become one of my most viewed Blogs – ‘Is it cos I is Black?’ The title was taken from Sacha Baron Cohen’s comic creation Ali G whose catchphrase it is. In that article, there was nothing actually that funny. My purpose was to highlight the shockingly high levels of racism that people of Afro-Caribbean origin still continue to experience in contemporary Britain – in spite of all the legislation (such as the Equality Act 2010) which theoretically puts people on an equal footing.
Race is a protected characteristic in terms of Sections 4 and 9 of the Equality Act 2010 and it is unlawful if a person is subjected to prohibited conduct e.g. direct discrimination (Section 13); indirect discrimination (Section 19); harassment (Section 26); and victimisation (Section 27).
It will, therefore, be unlawful in the UK to subject a person to a detriment because of race in relation to employment, education, training and the provision of services generally.
Bearing all of this mind, I was startled to read about a story from Guangzhou, China where a McDonald’s outlet has been severely criticised due to its staff refusing entry to African Americans. No reason has been given for this behaviour.
McDonald’s is understandably very sensitive about this issue and has apologised for the behaviour of its staff.
Had this incident occurred in the UK, you would be correct to conclude that legal action in terms of Sections 9 and 13 of the Equality Act 2010 would have been threatened. To anyone who doubts that discrimination against Black people is a thing of the past, this story will serve as a timely wake up call. Who would have thought that such things would still be going on in 2020?
A link to the story on the Sky News website can be found below:
Outrage after black people banned from McDonald’s branch in China
The story from China reminded me of an incident in the American city of Philadelphia which involved racism against two African American men who were arrested in a Starbucks outlet. The men were waiting for a friend to join them in the store when a manager called the Police because they had not purchased anything. They were taken from the store in handcuffs by the Police. The incident went viral and The ensuing publicity did Starbucks no favours at all.
A link to this story as reported by The Independent can be found below:
The title of this Blog refers to the not so distant past when discrimination was an accepted feature of life in the United Kingdom. In the 1950s and 1960s, these types of signs were routinely displayed in the windows of hotels, boarding houses and guest houses in the United Kingdom. They were blatantly racist, but completely legal.
It wasn’t just an unwillingness by White British landlords to rent rooms or properties to Afro-Caribbean and Asian families especially, ethnic minorities were often actively discouraged from purchasing properties in White neighbourhoods.
In 1968, Mahesh Upadhyaya, a young Asian immigrant to the UK, mounted legal challenge in respect of a refusal by a white British builder to sell him a house. It was the first time that anyone could do this. Mr Upadhyaya was able to do this because the Race Relations Act 1968 had just come into force. Although Mr Upadhyaya’s claim was ultimately dismissed on a technicality, the action generated a lot of publicity and greater awareness of the existence of anti-discrimination legislation amongst the British public.
A link can be found below which provides more information about Mr Upadhyaya’s story:
Even in the 1970s, you could still have a popular television sitcom called Love Thy Neighbour which dealt with the trials and tribulations of an Afro-Caribbean family moving into a white neighbourhood. If you watch it today, you can only cringe at the racist attitudes and name calling on display (see below) – you have been warned!:
This was the post-War period when Britain was suffering from acute shortages of labour and the solution adopted by successive Governments was to encourage immigration from former colonies such as Bangladesh, India, Pakistan, Sri Lanka and the British Caribbean islands.
Today, with the Equality Act 2010 firmly in place, it’s unthinkable that this type of blatant discrimination in housing could or would still take place. From time to time, however, stories are reported in the British media which highlight blatant racial discrimination in housing, but most people would now recognise that this type of behaviour is completely unlawful (see link below):
With this historical background, it was with some interest that I read recently about a number of legal actions (which had resulted in out of court settlements) where landlords had refused to let properties to certain individuals. These refusals had nothing to do with the racial backgrounds of prospective tenants, but the cases usefully demonstrate that letting properties can still be something of a legal minefield for landlords.
If the prohibition regarding Asian, Black and Irish people was an example of direct race discrimination (now in terms of Sections 9 and 13 of the Equality Act 2010), what about a prohibition which states ‘No DSS’ tenants? This term refers to individuals who are in receipt of State benefits such as Universal Credit whereby their rent is effectively paid by the Government.
At first you might be forgiven for thinking how such a prohibition could infringe equality laws, but dig a little deeper and think things over. The prohibition is a provision, criterion or practice (PCP) imposed by the landlord. Admittedly, people receiving State benefits are a hugely varied group: they will encompass men and women; White and Black and Minority Ethnic individuals; disabled and non-disabled people; heterosexual and LGBTI individuals; and people with religious/ philosophical beliefs and those with none.
This is to miss the point: could such a PCP be an example of indirect discrimination by reason of a protected characteristic in terms of Section 19 of the Equality Act 2010?
The answer seems to be yes: it would seem that more women than men are adversely affected by the prohibition ‘No DSS’ tenants. In other words, the prohibition is an example of indirect sex discrimination. Indirect discrimination can be understood in basic terms as hidden barriers which lead to unlawful, less favourable treatment.
Landlords may argue that they are not intentionally discriminating against women, but this is precisely the effect of their unwillingness to let properties to people receiving State benefits.
In 2017, the UK Supreme Court clarified the meaning of indirect discrimination in Essop v Home Office; Naeem v Secretary of State for Justice [2017] UKSC 27:
There is no obligation for a complainant with the protected characteristic to explain why the PCP puts her at a disadvantage when compared to other groups;
Indirect discrimination does not (unlike direct discrimination) have to demonstrate necessarily a causal link between the less favourable treatment and the protected characteristic. All that is required is a causal link between the PCP and the disadvantage suffered by the complainant and her group.
Statistical evidence can be used to demonstrate a disadvantage suffered by a group, but a statistical correlation is not of itself enough to establish a causal link between the PCP and the disadvantage suffered;
The PCP may not necessarily be unlawful of itself, but it and the disadvantage suffered must be ‘but for’ causes of the disadvantage. Put simply, if the PCP was not there, the complainant and her group would not suffer the detriment.
The PCP itself does not have to disadvantage every member of the complainant’s group e.g. some women may be able to comply with it, but , critically, more women than men cannot.
The pool of individuals to be scrutinised to assess the impact of the disadvantage should include everyone to which the PCP applies e.g. all those receiving State benefits whether they are negatively affected or not.
A link to the Supreme Court’s judgement can be found below:
It looks as if the phrase ‘No DSS’ may be consigned to the history books along with the more notorious example of ‘No Blacks, No dogs, No Irish’. Speaking of dogs: a general ban on these animals might constitute another example of indirect discrimination as individuals who are visually impaired (a disability) may be less likely to be able to comply as they rely on their guide dogs.
Links to stories about the legal challenges to the PCP of ‘No DSS’ tenants can be found below on the BBC News App:
One of the most important common law duties that an employer has under the contract of employment is to pay wages to the employee.
This duty, of course, is contingent upon the employee carrying out his or her side of the bargain i.e. performing their contractual duties.
The right to be paid fully and on time is a basic right of any employee. Failure by employers to pay wages (wholly or partially) or to delay payment is a serious contractual breach.
Historically, employers could exploit employees by paying them in vouchers or other commodities. Often, these vouchers could be exchanged only in the factory shop. This led Parliament to pass the Truck Acts to prevent such abuses.
Sections 13-27 of the Employment Rights Act 1996 (which replaced the Wages Act 1986) give employees some very important rights as regards the payment of wages.
The National Minimum Wage Act 1998 (and the associated statutory instruments) and the Equality Act 2010also contain important provisions about wages and other contractual benefits.
There are a number of key issues regarding the payment of wages:
All employees are entitled to an individual written pay statement (whether a hard or electronic copy)
The written pay statement must contain certain information
Pay slips/statements must be given on or before the pay date
Fixed pay deductions must be shown with detailed amounts and reasons for the deductions e.g. Tax, pensions and national insurance
Part time workers must get same rate as full time workers (on a pro rata basis)
Most workers entitled to be paid the National Minimum Wage or the National Minimum Living Wage (if over age 25) (NMW)
Some workers under age 19 may be entitled to the apprentice rate
Most workers (please note not just employees) are entitled to receive the NMW i.e. over school leaving age. NMW rates are reviewed each year by the Low Pay Commission and changes are usually announced from 1 April each year.
It is a criminal offence not to pay workers the NMW and they can also take (civil) legal action before an Employment Tribunal (or Industrial Tribunal in Northern Ireland) in order to assert this important statutory right.
There are certain individuals who are not entitled to receive the NMW:
Members of the Armed Forces
Genuinely self-employed persons
Prisoners
Volunteers
Students doing work placements as part of their studies
Workers on certain training schemes
Members of religious communities
Share fishermen
Pay deductions?
Can be lawful when made by employers …
… but in certain, limited circumstances only.
When exactly are deductions from pay lawful?:
Required or authorised by legislation (e.g. income tax or national insurance deductions);
It is authorised by the worker’s contract – provided the worker has been given a written copy of the relevant terms or a written explanation of them before it is made;
The consent of the worker has been obtained in writing before deduction is made.
Extra protection exists for individuals working in the retail sector making it illegal for employers to deduct more than 10% from the gross amount of any payment of wages (except the final payment on termination of employment).
Employees can take a claim to an Employment Tribunal for unpaid wages or unauthorised deductions from wages. They must do so within 3 months (minus 1 day) from the date that wages should have been paid or, if the deduction is an ongoing one, the time limit runs from the date of the last relevant deduction.
An example of a claim for unpaid wages can be seen below:
Regular readers of the Blog will be aware of the provisions of the Equality Act 2010 in relation to pay and contractual benefits. It will amount to unlawful sex discrimination if an employer pays a female worker less than her male comparator if they are doing:
Like work
Work of equal value
Work rated equivalent
Sick Pay
Some employees may be entitled to receive pay from the employer while absent from work due to ill health e.g. 6 months’ full pay & then 6 months’ half pay. An example of this can be seen below:
Statutory Sick Pay (SSP)
This is relevant in situations where employees are not entitled to receive contractual sick pay. Pre (and probably post Coronavirus crisis) it was payable from the 4th day of sickness absence only. Since the outbreak of the virus, statutory sick pay can paid from the first day of absence for those who either are infected with the virus or are self-isolating.
Contractual sick pay is often much more generous than SSP
2020: £95.85 per week from 6 April (compared to £94.25 SSP in 2019) which is payable for up to 28 weeks.
To be eligible for SSP, the claimant must be an employee earning at least £120 (before tax) per week.
Employees wishing to claim SSP submit a claim in writing (if requested) to their employer who may set a deadline for claims. If the employee doesn’t qualify for SSP, s/he may be eligible for Employment and Support Allowance.
Holiday Pay
As per the Working Time Regulations 1998 (as amended), workers entitled to 5.6 weeks paid holiday entitlement (usually translates into 28 days) per year (Bank and public holidays can be included in this figure).
Some workers do far better in terms of holiday entitlement e.g. teachers and lecturers.
Part-time workers get holiday leave on a pro rata basis: a worker works 3 days a week will have their entitlement calculated by multiplying 3 by 5.6 which comes to 16.8 days of annual paid leave.
Employers usually nominate a date in the year when accrual of holiday pay/entitlement begins e.g. 1 September to 31st August each year. If employees leave during the holiday year, their accrued holiday pay will be part of any final payment they receive.
Holiday entitlement means that workers have the right to:
get paid for leave that they build up (‘accrue’) in respect of holiday entitlement during maternity, paternity and adoption leave
build up holiday entitlement while off work sick
choose to take holiday(s) instead of sick leave.
Guarantee payments
Lay-offs & short-time working
Employers can ask you to stay at home or take unpaid leave (lay-offs/short time working) if there’s not enough work for you as an alternative to making redundancies. There should be a clause in the contract of employment addressing such a contingency.
Employees are entitled to guarantee pay during lay-off or short-time working. The maximum which can be paid is £30 a day for 5 days in any 3-month period – so a maximum of £150 can be paid to the employee in question.
If the employee usually earn less than £30 a day, s/he will get their normal daily rate. Part-time employees will be paid on a pro rata basis.
How long can employees be laid-off/placed on short-time working?
There’s no limit for how long employees can be laid-off or put on short-time. They could apply for redundancy and claim redundancy pay if the lay-off/short-term working period has been:
4 weeks in a row
6 weeks in a 13-week period
Eligibility for statutory lay-off
pay
To be eligible, employees must:
have been employed continuously for 1 month (includes part-time workers)
reasonably make sure you’re available for work
not refuse any reasonable alternative work (including work not in the contract)
Not have been laid-off because of industrial action
Employer may have their own guarantee pay scheme
It can’t be less than the statutory arrangements.
If you get employer’s payments, you don’t get statutory pay in addition to this
Failure to receive guarantee payments can give rise to Employment Tribunal claims.
This is an extremely relevant issue with Coronavirus, but many employers are choosing to take advantage of the UK Government’s Furlough Scheme whereby the State meets 80% of the cost of an employee’s wages because the business is prevented from trading.
Redundancy payments
If an employee is being made redundant, s/he may be entitled to receive a statutory redundancy payment. To be eligible for such a payment, employees must have been employed continuously for more than 2 years.
The current weekly pay used to calculate redundancy payments is £525.
Employees will receive:
half a week’s pay for each full year that they were employed under 22 years old
one week’s pay for each full year they were employed between 22 and 40 years old
one and half week’s pay for each full year they were employed from age 41 or older
Redundancy payments are capped at £525 a week (£508 if you were made redundant before 6 April 2019).
Please find below a link which helps employees facing redundancy to calculate their redundancy payment:
What happens if the employer becomes insolvent and goes into liquidation?
Ultimately, the State will pay employees their wages, redundancy pay, holiday pay and unpaid commission that they would have been owed. This why the UK Government maintains a social security fund supported by national insurance contributions.
An example of a UK business forced into liquidation can be seen below:
Up to 900 workers lost their jobs when administrators closed 70 of the cafe chain’s outlets. Disclaimer:
Conclusion
Payment of wages is one of the most important duties that an employer must fulfil. It is also an area which is highly regulated by law, for example:
The common law
The Employment Rights Act 1996
The Working Time Regulations 1998
The National Minimum Wage Act 1998
The Equality Act 2010
Family friendly legislation e.g. adoption, bereavement, maternity, paternity
Failure by an employer to pay an employee (and workers) their wages and other entitlements can lead to the possibility of claims being submitted to an Employment Tribunal. The basic advice to employers is make sure you stay on top of this important area of employment law because it changes on a regular basis and ignorance of the law is no excuse.
The Coronavirus continues to create chaos – legally speaking.
The latest casualty is the Scottish Government’s promised review of the Gender Recognition Act 2004. This exercise will now be postponed for the foreseeable future.
On 20 June 2019, the Scottish Government stated that, following a consultation in 2018, it would be bringing forward a Gender Recognition Bill in order to reform the current Gender Recognition Act 2004.
This exercise was always dogged by a lack of clarity on the Government’s part. Shirley-Anne Sommerville MSP, the Government Minister who had responsibility for this issue had publicly admitted that there was still a need to build a “maximum consensus” before things become clearer. Code for sorting out divisions over the issue within the ranks of the Scottish National Party.
A link to information about the proposed Bill can be found below:
In April 2005, the Gender Recognition Act 2004 came into force. This Act, which received the Royal Assent on 1 July 2004, currently provides people who have undergone gender reassignment procedures with legal recognition in relation to their newly acquired gender identity. The legislation applies across the United Kingdom and was passed by the Westminster Parliament.
Legal recognition of a person’s decision to reassign the sex or gender they have had from birth will follow from the issuing of a full gender recognition certificate by a Gender Recognition Panel. The individual applying for such a certificate must be able to satisfy certain criteria – the most important criterion will centre around the submission of medical evidence of physiological changes by the applicant.
Since the introduction of the Act, it has long been the case, therefore, that it will amount be unlawful discrimination to treat a person less favourably because s/he has undergone a a process of gender reassignment. The Equality Act 2010, of course, also bolsters legal protection for transgender people.
The Scottish Government’s proposed Gender Recognition Bill
The proposed Bill was controversial because some Scottish National Party MSPs and MPs (e.g. Joanna Cherry QC, Ash Denham, Kate Forbes and Lindsay Martin) are concerned about its main objective: that an individual who wishes to undergo gender reassignment will no longer have to provide medical evidence to the Gender Recognition Panel. The Panel currently determines the gender or sex of individuals who wish to undergo reassignment by issuing them with a certificate:
Under the Scottish Government’s proposals, an individual could effectively self-identify as a person of the opposite sex without having to undergo invasive medical procedures and provide the evidence of this fact in order to obtain recognition from the Panel.
Under the proposed legislation, an individual wishing to undergo gender reassignment would have to have met the following criteria:
A statutory declaration to the effect that they have decided to change gender or sex;
The declaration will contain a statement that the individual has been living as a man or a woman for at a minimum of 3 months;
The individual will have to undertake a compulsory or mandatory period of 3 months to reflect on the decision to undergo gender reassignment (no gender recognition certificate will be issued until this period has been completed).
Two academics at the University of Edinburgh, Dr Kath Murray and Lucy Hunter Blackburn have also been extremely critical about the Scottish Government’s approach to transgender rights generally.
A link to an article in The Holyrood Magazine discussing the research conducted by the two academics can be found below:
Willkomen (welcome) to Austria? Not if you’re Italian or someone travelling across the Austro-Italian frontier last weekend.
Why? The dramatic escalation of Coronavirus (COVID-19) outbreaks in Italy is the short answer.
The Austrian Government is very nervous about this and took emergency action by, arguably, suspending free movement provisions – if only briefly. On Sunday 23 February 2020, the Austrian authorities refused entry to its territory of a train coming from Italy for several hours. The Italian railway authorities had informed their Austrian counterparts that at least two of the passengers were exhibiting signs of a fever. The Austrians were taking no chances. The train was eventually permitted to cross the frontier.
The crisis is far from over with controls between Austria and Italy being currently considered by the Government in Vienna to deal with this public health issue.
A link to an article about this incident can be found below:
What are the legal implications of an EU member state suspending freedom of movement rules?
Italy and Austria are both member states of the European Union and free movement of persons is a key provision or fundamental freedom of the EU’s Single Market. Both countries are also part of the Schengen Agreement (from which the UK opted out whilst in the EU) which allows visa free travel between participating states. This Agreement has seen the abolition of frontier controls, to a a greater or larger extent, in many parts of Europe.
The imposition of frontier controls between EU member states is not a measure which is considered lightly.
Freedom of movement is a right which is fundamentally based on a person holding EU citizenship (or being related to a person who has citizenship). As Article 20 of the Treaty on the Functioning of the European Union (TFEU) which establishes the concept of citizenship states:
“Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.”
Article 21 TFEU declares in the following terms:
“Every citizen of the [European] Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.”
These freedom of movement provisions would be meaningless and ineffective if EU citizens faced discrimination on the grounds of their nationality in the host member state. Article 18 of the TFEU prohibits discrimination on the grounds of nationality (see Case 197/84 Steinhauser v City of Biarritz).
According to Article 45(5) TFEU, the free movement provisions can be derogated from i.e. disregarded on the following grounds:
Public security
Public policy
Public health
For its part, the Italian Government has since publicly stated that it will not be reintroducing frontier controls as an emergency measure to combat the spread of the Coronavirus:
Attempts by member states to derogate or withdraw from the free movement provisions will not be automatically approved and the affected individuals will always be able to challenge such restrictions in the national courts or, ultimately, before the Court of Justice of the European Union (CJEU) (see, for example, Cases 115-116/81 Adoui & Cornaille; Case 41/74 Van Duyn v Home Office; Case 36/75 Rutili v Minister of Interior).
In 2009, Geert Wilders, the far right Dutch politician was refused entry to the UK because the British Government argued that his presence in the country could undermine public safety by harming race and cross-community relationships. Wilders had made a short film, Fitna, which was highly critical of Islam. He had intended to present a showing of his film at the Westminster Parliament.
Please see a link below to an article in The Guardian about the incident involving Wilders’ attempted visit to the UK:
The freedom of movement as originally given to EU (EEC) citizens in the Treaty of Rome had an emphasis on permitting free movement of workers and other economically active individuals. This was perhaps understandable given the labour shortages in certain EU/EEC member states immediately after the Second World War. The postwar economies of France and Belgium, in particular, benefited from hundreds of thousands of economic migrants coming from their partner state, Italy.
Although the UK was not, at this point, a member state, it faced many of the same challenges as the Six EU/EEC Founding Members, but British recruitment of labour would centre on the former (and existing) colonies of its Empire e.g. from the Caribbean (the so called ‘Windrush Generation’).
Some of the most important decisions of the Court of Justice of the European Union (CJEU) about free movement were about removing the barriers which prevented foreign (EU/EEC) nationals working or providing services in another member state (see Case 59/85 Netherlands v Reed (workers); Case 2/74 Reyners v Belgium (services); & Case 246/89 Commission v UK (Nationalityof Fishermen) (establishment)).
Under the original Treaty of Rome (now to be found in the TFEU), EU citizens could take advantage of the free movement provisions by going to other member states to receive services: education, health and tourism (see Case 286/82 Luisi v Ministero del Tesero) – and many did just that.
Later, the CJEU would cement these rights by permitting family members of workers to claim entitlement to the free movement provisions of the Treaty of Rome.
That said, the freedom of movement provisions really only began to take on the dimensions of European citizenship as recently as the early 1990s after the stormy passage of the Maastricht Treaty (or the Treaty on European Union).
Underpinning the rights of free movement for individuals which are contained in primary legislation (the European Treaties) and decisions of the CJEU is the Citizens’ Directive (Directive 2004/38). This Directive really spells out (in a concrete way) the rights which EU citizens enjoy, namely, entry, residency, exit and the right to pursue employment opportunities in other member states.
Directive 2004/38 (Articles 4-14) also updated the older Directive 1612/68 (Articles 1-5) which guaranteed equal treatment and non-discrimination in employment to EU nationals residing and working in another member state.
Conclusion
The EU’s freedom of movement rules for its citizens and their dependants is a part of its fundamental law. A member state which derogates or withdraws from these rights does not do so for flimsy or superficial reasons. The TFEU does permit member states to suspend free movement provisions, but such action is always subject to the threat of possible legal action by the affected individuals; fellow member states and enforcement action by the European Commission.
Michael O’Leary, the motor mouth CEO of Ryanair, could never be accused of being a shrinking violet or one to shy away from a fight. As they say in Ireland: that one would cause trouble in an empty house.
The latest controversy to engulf Mr O’Leary concerns accusations of racism, religious discrimination and, indeed, sexism. Quite a charge sheet. He has suggested that single, males of the “Muslim persuasion” should be turned away from plane flights because “this is where the threat is.”
Ryanair is an Irish airline, but it services a large number of European destinations and many of its customer base will be single Muslim males who have quite lawful travelling plans.
Ryanair is a popular (I probably meant busy) airline that flies to and from destinations in the UK and many of British citizens are, of course, Muslim.
Mr O’Leary’s comments could potentially fall foul of the provisions of the Equality Act 2010 in relation to direct discrimination (Section 13) on the grounds of the following protected characteristics:
Religion (Section 10)
Sex (Section 11)
Now the Muslim faith is not a racial characteristic, so where could the accusations of race possibly arise? Well, if you are applying a criterion to your customer base, it could have a disproportionately adverse effect on certain groups within the population. Muslims are much more likely to be found amongst non-White British and Irish UK citizens. Indirect discrimination any one? (see Section 19 of the Equality Act 2010)
There’s also the small matter of European Union law (yes, in the UK we continue to follow these rules throughout the Brexit transition period) and Mr O’Leary’s comments could represent a breach of the Treaty on the Functioning of the European Union (primary legislation) and Equal Treatment Directives (secondary legislation).
There may be one get out for Mr O’Leary: if he can show that his comments were an objective (don’t laugh) and proportionate means of achieving a legitimate end. National security and health and safety concerns do, potentially, fall into this category, but Mr O’Leary’s approach to dealing with terrorism might be regarded as using a sledgehammer to crack a nut i.e. totally over the top and disproportionate. Section 192 of the Equality Act states:
“A person does not contravene this Act only by doing, for the purpose of safeguarding national security, anything it is proportionate to do for that purpose.”
Mr O’Leary may not be too concerned about the latest furore surrounding his comments – after all, as a fellow Irishman (Oscar Wilde) once remarked: “There is only one thing in life worse than being talked about, and that is not being talked about.”
In fairness to Mr O’Leary he has since apologised for his remarks, but the Muslim Council of Britain has condemned his comments (made in an interview with The Times).
Many Muslims have logged on Twitter their negative experiences of flying (see below):
#flyingwhilstMuslim
A link to an article on the BBC News App about Mr O’Leary’s comments can be found below:
Email can be a wonderful form of communication. It can also be, quite frankly, something of a curse for many employees and workers. Essentially, you’re never too far away from the work-place and bosses/clients/service users expect to receive an instant reply.
The expectation by bosses and managers that employees and workers should be monitoring their emails (constantly) does tend to be a contributory factor in the rising number of cases of work-related stress. Employers: please note that you have a duty of care to provide a safe working environment and part of this obligation includes monitoring unacceptably high levels of stress in the work-place.
There is a perception (rightly or wrongly) that UK employees suffer from some of the longest working hours in Europe. In 2019, data from the EU’s Eurostat Agency seemed to support this contention but, interestingly, the Organisation for Economic Co-operation and Development (OECD) took a more sceptical approach by questioning the method of data collection (the old adage about lies, damned lies and statistics springs to mind here).
Links to a BBC article about this issue and the Eurostat figures (and OECD response) can be found below:
UK employees are, of course, entitled to receive a written statement of the main terms and particulars of their employment as per Section 1 of the Employment Rights Act 1996. This statement must contain a provision which addresses the employee’s normal weekly working hours.
Despite Brexit (which did occur on 31 January 2020 – in case you missed it), the UK is still following EU rules until the end of this year … One EU Law with particular relevance to this debate is the Working Time Directive ((2003/88/EC) which was transposed into UK employment law by way of the Working Time Regulations 1998.
In theory, the Directive and the Regulations cap the number of hours that employees (and workers) can work at 48 hours per week (technical point: this figure can be averaged out over a reference period – 17 weeks normally). Crucially, however, UK employees and workers can opt out of the 48 hour maximum by signing a declaration (opt-out) that they wish to do so. If they change their minds, they are entitled to do so by giving the employer a minimum seven days’ notice (or in certain cases – 3 months) of this intention.
The legal rules on working hours are all very well in theory, but what about the culture of organisations which may (at an informal level) promote the idea that long hours spent at work (or just working) are a sure fire way to get ahead in your career?
This is where the influence of email (and other instant messaging services) can be quite insidious (pernicious even?). Employees feel under pressure to deal with this work load at weekends, during holidays and evenings. Parents of young children and carers of elderly relatives, who may have negotiated flexible working arrangements, may be under acute pressure to deal with emails etc when they are outside the work-place. In this way, the work-place becomes like the Eagles’ song, Hotel California (‘You can check out any time you like, But you can never leave!‘).
Interestingly, in some of our ex-EU partner countries, there have been initiatives at both the organisational and legal level to curb the smothering influence of email outside the work-place.
There is a real danger here for employers that, by encouraging employee use of email outside working hours, it may constitute a policy, criterion or practice (PCP) – no matter how informal – which could open themselves up to accusations of indirect discrimination on grounds of sex (women are still the primary carers for children and elderly dependents) and disability (by reason of a person’s association with a disabled person) in terms of Section 19 of the Equality Act 2010.
Furthermore, employees might feel that they are under constant surveillance by the employer because it becomes easier to keep tabs on individuals when they are logging in and out of the company’s IT network. For employers, this could lead to legal challenges from employees who are concerned that the right to privacy and family life as enshrined in Article 8 of the European Convention on Human Rights has been violated.
Is there a better way of doing things? Yes, is the short answer.
In 2011, the German multinational car manufacturer, Volkswagen (VW) introduced major changes to its working practices by curbing the use of emails when employees were off duty. This agreement was negotiated by the company and trade union/labour organisations.
In France, in August 2016, they went further and passed the El Khomri Law (named after the French Government Minister for Labour who introduced the proposal). This law gave employees a right to disconnect from email. In one particular case which involved the French arm of the British company, Rentokil, an employee was awarded €60,000 because his right to disconnect from email had been breached.
Links to stories about the changes to VW’s working practices and the French El Khomri Law can be found below:
The debate about the right of employees to disconnect from email – whether this is negotiated via some sort of collective agreement or underpinned by law – now seems to have penetrated the British consciousness. Rebecca Long-Bailey MP, one of the leading contenders for leadership of the British Labour Party has thrown her hat into the ring by backing a trade union campaign to introduce a legal right to disconnect in the UK.
One small problem: the Labour Party lost the last British General Election on 12 December 2019 to the Conservatives and is, therefore, in no position to deliver. Over to you Prime Minister Johnson? (a man fond of the populist gesture).
A link to an article in The Independent about Rebecca Long Bailey’s support for the trade union campaign to introduce a law guaranteeing the right to disconnect can be found below:
Last week I wrote a Blog about Stonewall’s list of 100 most inclusive UK employers for LGBTI people. The article summarised the advances in terms of the range of legal protection that the LGBTI communities now enjoy. From protection against discrimination in employment to same sex marriage, the turnaround in fortunes from a persecuted minority to part of the mainstream has been truly remarkable.
F. Scott Fitzgerald, the author of The GreatGatsby once remarked that “Switzerland is a country where very few things begin, but many things end.”
Today, the Swiss voted in a referendum to introduce laws which would extend protection from discrimination to LGBTI people. The proposal attracted support from 63% of Swiss voters and, finally, begins to bring the country into line with many of its neighbours who happen to EU member states. Switzerland is not part of the EU and, therefore, is not under any obligation to implement European laws which combat sexual orientation discrimination.
Critics of the Swiss proposal stated that the proposal was unnecessary because the country’s constitution already protected LGBTI individuals (and the country is a signatory to the European Convention on Human Rights). There were also concerns about what the proposal might mean for freedom of speech. Clearly, a majority of voters did not share these concerns.
Switzerland has a reputation for being a relatively conservative society (with a small ‘c’). After all, it was only in 1991 that the Swiss canton of Appenzell Innerrhoden finally permitted women to have the right to vote in cantonal elections. In federal (national) elections, woman had been given the right to vote since 1971.
We often forget this has been an incremental or gradual process in the UK and it did not happen overnight. Therefore, it is not advisable to be for British people to be smug or to have feelings of superiority about this issue. It was, after all, as recently as 2003 that the Employment Equality (Sexual Orientation) Regulations 2003 were implemented by the then Labour Government of Tony Blair. For the first time in UK employment law, LGBTI individuals were protected from discrimination in employment and training. This important law, critically, did not cover the provision of services and it was with the passage of the Equality Act 2010 that this area was eventually covered.
A link to an article on the BBC News app about the story can be found below:
It never ceases to amaze me that employers and service providers fall foul of arbitrary codes or policies which they impose on employees and service users. Regular readers of this Blog will be aware of previous articles covering discrimination or less favourable treatment which arises because employers or service providers issue generalised guidelines which discriminate against individuals because they happen to have certain hairstyles or wear beards or jewellery.
It is this lack of awareness that often leads to legal action in terms of the Equality Act 2010. By imposing a policy, criterion or practice (PCP) across the board, employers and other organisations could be setting themselves up for a fall specifically in relation to Section 19 of the Equality Act 2010. This part of the Act makes indirect discrimination unlawful i.e. it is an example of prohibited conduct by reason of a person or a group possessing a protected characteristic such as race or religion (Sections 9 and 10 respectively)
Since the introduction of the Race Relations Act 1976 (now repealed by the Equality Act 2010), we have seen a number of well known cases involving indirect discrimination being determined by Courts and Tribunals. So, you would think by now that employers and other organisations would have learned the lesson by now – apparently not as we shall see shortly.
In short order, such bans or generalised restrictions may infringe religious and cultural expression and may not only be a breach of the Equality Act, but could also represent a breach of human rights laws under the Human Rights Act 1998 and Article 9 of the European Convention on Human Rights.
Over the years, groups such as Jews, Muslims, Orthodox Christians, Sikhs and Rastafarians have brought successful legal actions for indirect discrimination on grounds of race and/or religion (see MandlavDowell–Lee [1982] UKHL 7). Being Jewish or Sikh can be both a religious and a racial identity.
Taking all of the above on board, I was really interested to read a story in The Independent this weekend which highlighted the problems of schools imposing dress codes on pupils. I thought: haven’t we been here before and why does no one seem to learn?
The story in question involves Ruby Williams who was “repeatedly sent home from Urswick School in Hackney, East London because she had Afro hair”. The school seems to have reacted with gross insensitivity to the youngster by informing her that her hairstyle was a breach of school uniform policy and that it could “block other pupils from seeing the whiteboard”.
Ruby and her family took legal action against the school (with the support of the Equality and Human Rights Commission) and she has since been awarded an out of court settlement of £8,500. The settlement figure clearly reflects the distress which she has suffered and the fact that all this trouble took place when she was studying for her GCSE exams (remember the Vento Guidelines anyone?). Ruby’s father is a Rastafarian and he has often stressed to his daughter the cultural, racial and religious significance of Afro hairstyles.
Apart from indirect discrimination which the school’s policy has caused to Ruby Williams, she may well also have had a claim in terms of Section 13 (direct discrimination) and Section 26 (harassment) of the Equality Act 2010 for being singled out in this way by the school authorities.
Perhaps the staff and Governors of the school might find it appropriate to undertake an equality awareness course at the next in-service day?
It is always open to an employer or service provider to show that although indirect discrimination has taken place, it can be objectively justified e.g. on national security grounds or health and safety reasons (e.g. Singh v Rowntree MacKintosh [1979] ICR 554 and Panesar v Nestle Co Ltd[1980] IRLR 64 CA).
Each attempt to justify a provision, criterion or policy (PCP) will, of course, turn on its facts and it would be very foolish for organisations to think that there is some sort of magic bullet or get out of jail card which can be used in every situation to justify or excuse conduct which would otherwise amount to unlawful discrimination. Organisations should review policies on a regular basis and, if need be, this may necessitate the carrying out of an equality impact assessment.
A link to the story on The Independent’s website can be found below:
The only gay in the village became a household phrase in the UK thanks to the long running Little Britain sitcom TV and radio series (which has been broadcast by the BBC since 2000).
Daffyd Thomas claimed to be the only gay person in a small, Welsh village (actually he wasn’t), but in some respects his catchphrase reflected the isolation that many people in the LGBTI communities experience – either in their personal or professional lives.
The reason that I mention this topic is because, last week, the LGBTI campaigning organisation, Stonewall, published research about the most inclusive LGBTI friendly employers in the UK (Newcastle City Council topped the list). That said, for many LGBTI employees, an inclusive work place is still a far off dream.
Please find a link to a story on the Sky News website about one employee’s decision to hide his LGBTI identity from his colleagues:
A person’s sexual orientation is, of course, a protected characteristic in terms of Section 12 of the Equality Act 2010. Such individuals should not be subjected to direct discrimination (Section 13); indirect discrimination (Section 19); harassment (Section 26); and victimisation (Section 27).
Many years ago, I remember teaching a group of students who were studying for a professional qualification. Many of them were employed by recruitment agencies and it was my task to highlight the relevant provisions of discrimination law at that time. One evening, we had a discussion about discrimination on the grounds of a person’s sexual orientation – particularly in the context of the ban on gay and lesbian people serving in the UK Armed Forces. This ban would eventually be lifted in 2000 – following the decision of the European Court of Human Rights in Smith and Grady v UK (1999) 29 EHRR 493.
One of the students asked me what protection existed for gay and lesbian people in employment law generally. Very little was my response. Before the introduction of the Scotland Act 1998 and the Human Rights Act 1998, the work place could be very hostile for LGBTI people (see Macdonald v Lord Advocate; Pearce v Governing Body of Mayfield School [2003] UKHL 34).
Yes, admittedly, the UK was (and still is in spite of Brexit) a signatory to the European Convention on Human Rights. In particular, Article 8 of the Convention recognises the right to family and private life. It was this Article which was used to overturn extremely restrictive laws on same sex relationships which existed in Scotland, Northern Ireland, the Isle of Man and the Channel Islands. Reinforcing Article 8 is Article 14 of the Convention is Article 14 which contains a general prohibition on discrimination.
The late 1960s are often referred to as the key period of the start of gay liberation in the UK with the passing of the Sexual Offences Act 1967 which decriminalised homosexual relationships between consenting adults (aged 21 or over) and as long as such conduct was in private. What is often overlooked is that the 1967 Act applied to England and Wales only. The picture was very different (and would remain so for over a decade – sometimes longer) in various parts of the British Isles.
Homosexual relationships were decriminalised in Scotland in 1980; in Northern Ireland in 1982; the UK Crown Dependency of Guernsey in 1983; the UK Crown Dependency of Jersey in 1990; and the UK Crown Dependency of the Isle of Man in 1994. The age of consent was set at 21 for all these parts of the British Isles. Things have since moved on and the age of consent was firstly reduced to 18 and then eventually to 16.
In the last 20 years, the influence of the European Union has been particularly profound regarding measures to combat sexual orientation discrimination.
In 1999, as a result of the Treaty of Amsterdam, the EU adopted two Directives which considerably expanded the scope of its anti-discrimination laws (the Racial Equality Directive (2000/43/EC) and the Employment Equality Directive (2000/78/EC). Of particular interest to this discussion is the Employment Equality Directive which made it unlawful to discriminate against a person on grounds of sexual orientation. Admittedly, this Directive was limited because it covered the areas of employment and vocational training only.
On 1 December 2003, the Employment Equality Directive would eventually become part of UK law in the form of the Employment Equality (Sexual Orientation) Regulations 2003. The Regulations were repealed and replaced by the relevant provisions of the Equality Act 2010 (which came into force on 1 October 2010).
It did not extend to the provision of goods and services, so had the case of Bull and Another v Hall and Another [2013] UKSC 73 occurred when the Directive was first transposed into UK domestic law, the same sex couple who were refused a double room at the guest house in Cornwall would not have been successful in their claim for sexual orientation discrimination. Luckily for them, the Equality Act had since come into force and covered unlawful less favourable treatment on grounds of a person’s sexual orientation with regard to the provision of goods and services.
The Treaty on the Functioning of the European Union (TFEU) is also worthy of comment. Article 19 prohibits discrimination by reason of a person’s sexual orientation and, notably, this provision is hardwired into UK law by way of the Equality Act 2010. Article 19 extended legal protection to gay and lesbian people more generally – over and above the limited areas of employment and vocational training which the Treaty of Amsterdam and the Employment Equality Directive had originally addressed.
The EU Charter of Fundamental Rights (although Poland and the UK had negotiated some opt-outs) contained significant provisions on equality and non-discrimination, namely, Article 20 (equality before the law) and Article 21 (the principle of non-discrimination).
Another massive step forward for the equality of the LGBTI community was the introduction of the Civil Partnerships Act 2004 which would give legal recognition (and protection) to gay and lesbian people who chose to enter such relationships. These rights would be further underpinned by permitting same sex couples to marry (in England and Wales in 2013 and in Scotland in 2014). Currently, Northern Ireland is the only part of the UK not to permit same sex marriage – although this will change from next week onwards (see link below):
Robyn Peoples and Sharni Edwards will celebrate their wedding on Tuesday in Carrickfergus.
This change to the law has come about as a result of the introduction of the Northern Ireland (Executive Formation etc) Act 2019 passed by the UK Parliament (in the absence of of a functioning devolved government for nearly the last 3 years).
Finally, if employers want to do more to create an inclusive work place, they could start by using Stonewall’s inclusive toolkits (see link below):
As a society, the UK has certainly moved on from the overtly hostile attitudes towards members of the LGBTI communities over the last 50 years or so. The legal rights and protections which LGBTI people now enjoy would have seemed unthinkable in 1967 when a limited form of tolerance was ushered in as a result of the Sexual Offences Act (in England and Wales). More recently, the UK and Scottish Governments have issued pardons to those individuals who were convicted of criminal offences under the previous laws (in 2017: the Policing and Crime Act 2017 in England and Wales (known as Turing’s Law after Alan Turing, the Enigma Code Breaker) and, in 2018, the Scottish Parliament followed suit by passing the Historical Sexual Offences (Pardons and Disregards) (Scotland) Act 2018).
Postscript
On Friday 7 February 2020, Phillip Schofield, the British TV celebrity announced that he was gay at the age of 57. Mr Schofield is married with 2 children and had lived a heterosexual life – until now. He likened hiding his sexual orientation to being in prison and being consumed by it.
A link to the story on the Sky News website can be found below:
Seán Crossan's Scots Law 