We’re barely into 2020 and we seem to be on something of a roll with stories about sex discrimination. Yesterday, I discussed the issue of equal pay.
Only this morning I was flicking through the newspaper and came across another story, this time, concerning pregnancy discrimination.
Helen Larkin was dismissed from her post with the Liz Earle Beauty Company on the grounds of her pregnancy. Her employer was restructuring the company and refused to consider Ms Larkin for two alternative posts within the organisation. This refusal to consider suitable, alternative employment appeared to be motivated by the fact that Ms Larkin would shortly be going off on her period of maternity leave.
This treatment amounted to unlawful direct discrimination in terms of Sections 13 and 18 of the Equality Act 2010. Her dismissal would also be automatically unfair in terms of the Employment Rights Act 1996.
Consequently, Ms Larkin was awarded over £17,000 in compensation. This sum, of course, reflects an element to injury to feelings (the so called Vento Bands or Guidelines).
A study carried out jointly by the UK Government Department (Business, Innovation and Skills) and the Equality and Human Rights Commission previously discovered that some 54,000 women per year in this country were forced out of their employment for reasons related to pregnancy and/or maternity.
A link to a summary of the research on the website of the Equality and Human Rights Commission can be found below:
Again, as I noted in yesterday’s Blog (New Year, same old story …), we have had anti-discrimination laws in the UK for nearly 45 years and yet we still regularly hear stories about pregnancy and maternity discrimination.
Readers might be interested to learn about the work of a pressure group (Pregnant then screwed) whichcampaigns to end the ‘motherhood penalty’:
… well now Jordi Casamitjana can believe officially. He has just won part of his Employment Tribunal case (Casamitjana v League Against Cruel Sports) which confirms that ethical veganism is a protected philosophical belief in terms of Sections 4 and 10 of the Equality Act 2010.
Please note, however, that the Employment Tribunal is yet to determine whether Mr Casamitjana was dismissed because of these protected beliefs – that is another matter.
The full Employment Tribunal judgement doesn’t appear to be available yet, but I hope to post a link to this very soon.
In the meantime, please find a link below to the BBC News App which is covering the decision:
This is the lesson which a Scottish secondary teacher has learned to his cost. He was filmed by a pupil while drunk in the street wearing only his box shorts. Teacher Z (he remains anonymous) was charged with drunkenness and subjecting paramedics to abuse. Apparently, he did not inform his employer and, following a hearing before the General Teaching Council, he has been ruled unfit to continue practising as a teacher.
I often grimace when I hear someone trying to justify bad behaviour on the basis that it happened outside work. If I had a £20 note for each time I heard this remark …
Regular readers of this Blog will be well aware that employers are entitled to dismiss an employee who has committed an act of gross misconduct in terms of Section 98 of the Employment Rights Act 1996. Such behaviour could include misconduct committed outside working hours.
Provided the employer follows the correct disciplinary procedures, the dismissal will almost certainly be regarded as a fair by an Employment Tribunal.
A link to the story on the BBC News App can be found below:
Thanks to @tchickphoto for making this photo available freely on @unsplash 🎁
Scanning through the papers today for news worthy stories, I found myself looking across the sea (the Irish Sea to be precise) and it was there that I stumbled upon an interesting article in The Irish Times.
Regular readers of this Blog will be aware that I have a particular interest in the areas of discrimination and employment law and this story ticked both boxes.
A female supermarket delicatessen worker was repeatedly subjected to sexual harassment on an almost daily basis by one of her male co-workers. The dreadful treatment appears to have started less than a month after the woman commenced her employment (May 2018). Her manager (a man) was fully aware of the situation, but did nothing to put an end to her ordeal. In fact, he witnessed one of the brazen attempts by her tormentor and made a joke of it. This joke involved comments about people from Limerick. I have to say as someone who has Limerick ancestry, I felt pretty insulted when reading the manager’s gratuitous comment.
A link to the story in The Irish Times can be found below:
The woman complained about the situation, but she was not informed about the progress of this by her employer. Eventually, the woman felt that she had little choice but to resign from her employment. This could be viewed as the last straw – her employer’s conduct having led to a complete breakdown in their relationship. It might be said that the implied duty of trust and confidence on the part of the employer had been completely shattered.
In the UK, we would, of course, recognise this situation as one of constructive (unfair) dismissal in terms of the Employment Rights Act 1996 and the Equality Act 2010 (she was being subjected to discrimination/unlawful less favourable treatment on the grounds of her sex).
When the woman’s formal complaint was submitted, her employer did move her male colleague to a different location within the supermarket (the storeroom), but he went absent on sick leave shortly afterwards.
The whole experience was extremely distressing for the woman who has now been awarded €20,000 in compensation.
Again, readers in the UK will make the obvious comparison with our Vento scale (or bands) for compensation for victims of discrimination. The sum awarded to this woman would fall into the middle band in the UK (£8,800 to £26,300).
A link to an article about the current UK Vento scale or bands can be found below:
Anyone with a background in discrimination law who reads the article from The Irish Times about this story will immediately recognise the terminology used. The women alleged that her co-worker’s behaviour “was a violation of dignity in that it created an intimidating, hostile, degrading, humiliating and offensive environment for her.”
Such a statement reflects the language of the European Commission’s Code of Practice on Measures to combat sexual harassment. This Code was first formulated as far back as 1991 and has now been largely implemented into the legal systems of EU member states. The Republic of Ireland is, of course for the time being, one of our fellow EU member states and Irish anti-discrimination practitioners will be readily familiar with the terminology. For many years, Employment Tribunals and UK courts routinely used the Commission’s Code of Practice when dealing with cases which involve allegations of sexual harassment.
Current UK law on harassment in the workplace is contained primarily in the Equality Act 2010. More seriously, acts of harassment can also be a criminal offence.
A link to a guidance published by the UK Equality and Human Rights Commission concerning sexual harassment in the workplace can be found below:
The Conciliator appointed by Ireland’s Workplace Relations Commission, an independent statutory body created by Oireachtas – both Houses of the Irish Parliament, concluded that the woman’s employer had “failed to put appropriate measures in place to stop this harassment and sexual harassment from occurring or to reverse its effects”.
The Conciliator also noted that “the supermarket failed to conclude its investigation and make a decision is the most egregious flaw in the process.” The employer tried to justify this failure by saying that, as a matter of natural justice, it could not conclude the investigation because the male colleague had since left Ireland to return to his country of origin. The Conciliator stayed that the employer made this decision “at the expense of the complainant and closure for her of this appalling experience”.
Employers, please take note: failing to follow basic grievance procedures contained in the employment contract can have serious and expensive consequences. Such a failure on your part can contribute to the breakdown of the relationship with the employee and may very well open the door to claims for constructive dismissal against you.
This is the stark choice faced by thousands of Asda employees (US parent company Walmart) in the UK who have been told by their employer that they must accept new contracts of employment.
The GMB Trade Union representing many of the affected employees has publicly stated its opposition to the new contracts. The Union’s argument amounts to the claim that the new terms and conditions will leave employees in a worse position.
Asda has stated that if employees don’t agree to the new contracts of employment by 2 November 2019, they will no longer have a job with the company. Effectively, the employees will be terminating their employment with the company Asda is arguing.
What’s the legal position?
Well, Asda is stating that it wishes to terminate the existing contractual agreement with the affected employees and replace it with a new contract. In this type of situation, Section 86 of the Employment Rights Act 1996 is particularly relevant.
The Act lays down statutory minimum periods of notice that the employer must give to the employees in question. These statutory minimum periods of notice apply to all those employees who have been continuously employed for four weeks or more.
Given the amount of previous Blogs of mine where I have covered the issue of an individual’s employment status, I really shouldn’t have to remind readers that the statutory notice periods apply to employees only i.e. those individuals who work under a contract of service (as per Section 230 of the Employment Rights Act 1996).
The statutory periods are detailed below:
One week’s notice is required to be given to those individuals who have been employed for more than four weeks but under two years
If the employee has between two and 12 years’ continuous service, s/he is entitled to a week’s notice for every year of service
If an employee has more than 12 years’ continuous employment, the maximum notice period is 12 weeks
It is important to note that these are statutory minimum periods of notice and that contracts of employment may actually lay down a requirement for longer periods of notice.
Alternatively, some employers may choose to insert a term in the contract where they can pay off the employee immediately by giving them their full entitlement to notice pay. There is no need for the employee to work whatever notice period they are entitled to receive. This type of contractual term is known as payment in lieu of notice.
Back to Asda: the affected employees are being given their statutory notice period whether that’s 1 week, 2 weeks or up to the maximum notice period of 12 weeks (depending on the individual’s length of service) as per Section 86 of the Employment Rights Act 1996.
What if some people still refuse to sign the new contracts after their statutory period of notice has expired?
There is always the possibility that certain employees (with the requisite length of service or meeting other relevant criteria e.g. protected characteristic discrimination) may be able to raise a claim for unfair dismissal in terms of the Employment Rights Act 1996.
Asda, on the other hand, may be able to justify the dismissals as potentially fair under Section 98(2) of the Employment Rights Act 1996 i.e. for some other substantial reason (the necessity for a wide-scale reorganisation in a tough retail environment).
No doubt lawyers for both Asda and the GMB are already staking out their respective legal positions for a possible battle before the Employment Tribunal.
A link to the story on the Sky News website can be found below:
It has since been reported in the Daily Mirror newspaper that one of Asda’s longer serving employees who was sacked for refusing to accept the new contract is intending to lodge an Employment Tribunal claim.
What has European Union law done for workers in the UK?
This was a question that I found myself asking when reading about very poor working conditions and lengthy hours experienced by many Chinese teenagers working in factories in order to manufacture a product purchased and used by many Western consumers.
The answer to my question is quite a lot actually when you consider the impact of the EU Working Time Directive which was transposed into UK employment law as a result of the Working Time Regulations 1998.
The Working Time Regulations 1998 guarantees most workers (there are exceptions – aren’t there always?) the right not to be forced to work more than 48 hours per week.
It’s important to note that the category of worker has a broader meaning and is not merely confined to those people who are employees (i.e. have a contract of service as per Section 230 of the Employment Rights Act 1996). Many individuals who work under a contract for services will benefit from the protection of the Directive and the Regulations.
The Regulations also compel the employer to give workers regular breaks and they also regulate the amount of hours that the worker can be forced to work in any one day.
There is special protection for younger workers regarding breaks and the maximum daily hours that they are permitted to work.
The basic rights and protections that the Regulations provide are:
a limit of an average of 48 hours a week which a worker can be required to work (though workers can choose to work more if they wish by signing an opt-out) (Regulation 4)
a limit of an average of 8 hours work in each 24 hour period which night workers can be required to work (Regulation 6)
a right for night workers to receive free health assessments (Regulation 7)
a right to 11 hours rest a day (Regulation 10)
a right to a day off each week (Regulation 11)
a right to an in-work rest break if the working day is longer than 6 hours (Regulation 12)
a right to 5.6 weeks (or 28 days) paid leave per year
Admittedly, many UK and EU employers will have better working conditions than the list above, but in theory the Working Time Directive provides a basic safety net or floor of rights for workers.
It is normal practice, for many employers to have a collective or work-place agreement which governs the length of in-work rest breaks if the working day is longer than six hours.
If there is no such agreement, adult workers are entitled to a 20 minute uninterrupted break which should be spent away from the work-station and such a break should not be scheduled at the end of a shift.
Younger workers are entitled to a longer, uninterrupted break of 30 minutes if their working day is longer than four and a half hours and, similarly, this break should be spent away from a person’s workstation.
What a contrast then from conditions in Chinese factories. Although China may be on course to become the World’s largest economy, the human cost of achieving this goal is very high.
No one, of course, is saying that the situation in the UK and the EU is approaching utopia for workers. The Regulations (and ultimately the Directive) can and will be ignored by rogue employers. Furthermore, in work-places where trade unions are weak or non-existent, workers may not be aware of their rights or willing to enforce them.
Despite all this, at least UK and EU workers have some sort of legal means for challenging poor working conditions and the culture of lengthy hours.
One of the big fears about the consequences of Brexit has, of course, been the possible erosion of employment protection standards by a future UK Government and Parliament that might be committed to a more free market economic philosophy of labour relations.
A link to the story about working conditions in China can be found below:
“Great big girl’s blouse!” or “a girly swot”. Harmless insults; a bit of banter; or perhaps an example of sexist language? Deborah Haynes, a journalist with Sky News, certainly took the view that these remarks were sexist in nature – even though men were the targets (see the link below).
The first of these remarks was uttered allegedly by Prime Minister Boris Johnson MP in the House of Commons last week and directed towards the Leader of the Opposition, Jeremy Corbyn MP. The second remark was in a memo written by the Prime Minister in which he was critical of David Cameron (one of his predecessors).
Mr Johnson is well known for his colourful language in both print and in his speeches, but he was called out last week in the House of Commons by the Labour MP, Tammanjeet Singh Dhesi who accused him in very blunt terms of making racist remarks about Muslim women who chose to wear the Islamic form of dress known as the burka as an outward sign of their religious beliefs and cultural background.
Mr Tammanjeet drew on his own experiences as a Sikh and the kinds of derogatory remarks that he had to endure. His speech was received very warmly on the Opposition benches of the House of Commons.
On the other hand, Mr Johnson attempted a defence of his language by saying that he had merely spoken up in favour of the good old fashioned liberal value of freedom of speech. It was not an entirely convincing performance from the Prime Minister and far from his finest hour at the despatch box.
The Equality Act 2010 recognises various forms of prohibited conduct such as direct discrimination (Section 13) and harassment (Section 26). Sexist, sectarian and homophobic remarks may well be taken as examples of direct discrimination. A sustained campaign of bullying to which an individual (with a particular protected characteristic) is subjected may amount to harassment.
It will be sensible for employers particularly to spell out to employees what is acceptable (and what is not) in terms of the kinds of language or behaviour in the work-place. If employers do nothing to check discriminatory remarks such as racist or sexist insults, there is a real danger that they could be held vicariously liable.
Had Mr Johnson been a mere mortal, some of his remarks may have come back to haunt him. Employers are entitled to take disciplinary action against those employees who have committed acts of discrimination. After all, they are merely protecting their position by not leaving themselves open to the threat of legal action by the victims.
From the employee’s perspective, engaging in offensive language could give the employer the right to treat this type of behaviour as gross misconduct. It should be recalled that, in terms of Section 98 of the Employment Rights Act 1998, misconduct committed by an employee can be punished by dismissal and such a termination of the employment contract may be entirely reasonable in the circumstances.
In short, no one should have to work in a place where there is a hostile, degrading or intimidating environment. Racist or sexist remarks can be highly suggestive of such a working environment if permitted to go unchecked and unchallenged. Maybe in future the Prime Minister would do well to mind his language.
Links to articles about the Prime Minister’s colourful turn of phrase can be found below: