Pregnancy discrimination (or New Year, same old story …Part 2)

Photo by Sincerely Media on Unsplash

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:

https://www.equalityhumanrights.com/en/managing-pregnancy-and-maternity-workplace/pregnancy-and-maternity-discrimination-research-findings

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) which campaigns to end the ‘motherhood penalty’:

https://pregnantthenscrewed.com

A link to Helen Larkin’s story as reported in The Independent can be found below:

https://edition.independent.co.uk/editions/uk.co.independent.issue.110120/data/9278901/index.html

Related Blog articles:

https://seancrossansscotslaw.com/2020/01/10/new-year-same-old-story/

https://seancrossansscotslaw.com/2019/02/14/hurt-feelings/

https://seancrossansscotslaw.com/2019/02/22/sticks-and-stones-may-break-my-bones-but-names-will-never-hurt-me/

https://seancrossansscotslaw.com/2019/07/08/just-blew-it-again/

https://seancrossansscotslaw.com/2019/08/22/the-trouble-with-pregnancy/

https://seancrossansscotslaw.com/2019/09/10/barbaric/

Copyright Seán J Crossan, 11 January 2020

New Year, same old story …

Photo by Markus Spiske on Unsplash

It’s becoming depressingly predictable: the persistence of the gender pay gay in the United Kingdom.

This time last year, I was discussing with my students the struggle that City of Glasgow Council female employees were undertaking to win their claims for equal pay. After a period of industrial action, the women finally won their struggle:

https://www.theguardian.com/society/2019/jan/17/glasgow-council-women-workers-win-12-year-equal-pay-battle

We’ve just entered 2020 and it seems as if nothing much has changed in the wider world (more on this later).

Theoretically, the gender pay gap should be a thing of the past. We have had legislation in place for nearly 45 years in this country: the Equal Pay Act 1970 (which came into force in December 1975) and the current Equality Act 2010.

An info graphic which shows the number of Employment Tribunal cases in the UK involving equal pay claims (2008-2019) can be seen below:

Source: UK Ministry of Justice obtained from BBC News

True, the above figures show the number of equal pay claims in overall decline – effectively being halved (from a high of over 60,000 in 2008 to just over 30,000 in 2019); but my riposte to that would to say still too many.

In today’s edition of The Independent, new research, carried out by the Institute of Public Policy Research, indicates that female General Practitioners (physicians for our overseas readers) are paid up to £40,000 less than their male colleagues every year.

For each £1 that a male colleague earns, a woman earns 35 pence less. To reinforce this point, the article states that female GPs are effectively providing their services free of charge between September and December every year.

In language of the Equality Act 2010, the female GPs are carrying out ‘like work’ when comparing themselves to their male colleagues. There seems to be absolutely no lawful justification for this disparity in pay between the sexes.

A link to the article in The Independent can be found below:

https://edition.independent.co.uk/editions/uk.co.independent.issue.100120/data/9277336/index.html

The equal pay laws imply a sex or gender equality clause into every person’s contract of employment. Employers therefore have a legal duty to ensure gender equality in relation to terms and conditions of service.

It seems pretty simple, so why isn’t it happening in 2020?

An explanation for this situation in the medical profession has centred around the development of a ‘two tier’ system whereby more men are partners in GP surgeries whereas a large number of women take on the role of a salaried GP. Women tend to become salaried GPs because they feel that this allows them to work flexibly around their family commitments. So, again, what we appear to be seeing is women being penalised because they are trying to balance work and family (the so called ‘motherhood’ penalty).

Also on this day …

And purely by coincidence another equal pay story …

… Samira Ahmed, BBC journalist, wins her Employment Tribunal claim for equal pay (see below):

http://news.sky.com/story/samira-ahmed-tv-presenter-wins-sex-discrimination-equal-pay-claim-against-the-bbc-11905304

And if you’re still not convinced …

read the following article in The Independent about discrimination in pay between male and female apprentices (guess what?; it’s not the men who are the victims):

https://edition.independent.co.uk/editions/uk.co.independent.issue.150120/data/9283611/index.html

Copyright – Seán J Crossan, 10 and 15 January 2020

Hostile, degrading, humiliating

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:

https://www.irishtimes.com/news/ireland/irish-news/deli-worker-awarded-20-000-for-almost-daily-sexual-harassment-1.4128207

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:

https://www.crosslandsolicitors.com/site/hr-hub/injury-to-feelings-awards-updated-Vento-guidelines-April-2018

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:

https://www.equalityhumanrights.com/sites/default/files/sexual-harassment-and-the-law-guidance-for-employers.docx

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.

Related Blog Articles

https://seancrossansscotslaw.com/2019/02/14/hurt-feelings/

https://seancrossansscotslaw.com/2019/02/22/sticks-and-stones-may-break-my-bones-but-names-will-never-hurt-me/

Copyright Seán J Crossan, 1 January 2020

Barbaric!

Photo by Sharon McCutcheon on Unsplash

We may think that in Western societies we’ve come a long way regarding the advances made by women.

Then, before we get too smug, something happens which forces us to confront the fact that we’re not quite as enlightened or civilised as we like to think.

Such an incident occurred last week in the United States of America when it was reported that a the authorities were negligent when Diana Sanchez, a pregnant woman who was being held in Denver County Jail, was denied proper medical treatment. The woman’s cries for help were allegedly ignored for 5 hours and she was forced to give birth to her son in the prison cell.

Had something similar occurred in the UK, lawyers might have been looking at Section 17 of the Equality Act 2010 (pregnancy and maternity discrimination: non-work cases) to provide grounds for a legal challenge against the operators of a prison. Clearly, this sort of failure by the authorities to implement a basic duty of care could be viewed as blatant sex discrimination.

In 2019, would have been too difficult for the Denver County Jail authorities to have ensured that this particular inmate had access to to the appropriate medical facilities? Surely, given her condition, this was not asking too much?

Lawyers for Ms Sanchez are now, unsurprisingly, pursuing a civil action against Denver County Sheriff’s Department.

A link to the story as reported by Sky News can be found below:

http://news.sky.com/story/woman-who-gave-birth-alone-in-denver-prison-cell-files-lawsuit-11797438

Postscript

Lest we become judgemental about the US Penal system, on 4 October 2019, The Guardian reported that the new born child of an inmate at HM Prison Bronzefield in Surrey had died. The mother had been in an “advanced state” of pregnancy, but had been left alone in her cell overnight when she had given birth to the child.

A link to the story can be found below:

https://www.theguardian.com/society/2019/oct/04/baby-dies-in-uk-prison-after-inmate-gives-birth-alone-in-cell

Copyright Seán J Crossan, 10 September and 4 October 2019

Tickets for “people of colour” … or the problem with positive discrimination

Photo by Ehimetalor Unuabona on Unsplash

Tickets for “people of colour” …

In a previous blog (The force is not with you … published on 28 February and updated on 10 June 2019), I discussed the problems associated with policies of positive discrimination.

So, it is with some interest that I read an item on Sky News today about Afrofuture Fest a music festival which was to take place in the American City of Detroit. The festival organisers had offered tickets for sale to members of the public. Absolutely nothing unusual in that readers will undoubtedly respond, but what was unusual was the fact that the price to be paid in conjunction with an ‘early bird’ promotion was to be determined by the customer’s racial origins (tickets for “people of colour”).

If you were an African American applying for tickets, you would pay less than a White American wanting to go to the gig. I admit that I was intrigued by this marketing approach and I wanted to know what were the underlying motivations of the organisers? I confess: I’m coming from a different cultural perspective here in the UK and, generally, we’re not too keen on the widespread use of positive discrimination as a tool for promoting equality.

Well, it would seem that the pricing policy was motivated by a genuine determination to ensure that African Americans (who happen to be in the disproportionately lower income section of US society) were not deterred from attending the event by high prices. Furthermore, the organisers wanted a racially diverse group of music fans to attend the festival.

All well meaning, but the event has now become mired in controversy with the organisers receiving threats from white supremacist groups and artists deciding not to perform. The ticket policy has now been scrapped.

A link to how the story was reported on Sky News can be found below:

Festival scraps cheaper ‘people of colour’ tickets after ‘white supremacist threats’
http://news.sky.com/story/festival-scraps-cheaper-people-of-colour-tickets-after-white-supremacist-threats-11758953

Positive discrimination: the legal position

Discriminating in favour of one group of people over another (whether this is motivated by a good intention or not) will most likely be regarded as an example of direct discrimination which contravenes Section 13 of the Equality Act 2010.

The judgement of the House of Lords in James v Eastleigh Borough Council [1990] 2 AC 751 was particularly strong on this point and it was irrelevant that the Council was acting from motives of good faith i.e. to promote healthier lifestyles for female residents of the Borough. The simple fact was that the Borough Council was acting unlawfully (in breach of the then Sex Discrimination Act 1975) when it charged men for entry to the swimming pool when women were not charged for access to this facility. The Borough Council had committed an act of direct, sex discrimination.

Positive discrimination has only really been successful in the UK when the Westminster Parliament has given it the full backing of the law and, additionally, it complies with this country’s EU legal obligations.

One notable example of positive discrimination is the Sex Discrimination (Election Candidates) Act 2002 which aimed to encourage more women to enter Parliament by having all women short lists. Previously, such an attempt to promote positive action would have been illegal under the (now repealed) Sex Discrimination Act 1975.  Some (male) Labour activists did, in fact, bring successful legal challenges under the former sex discrimination legislation on the grounds that they had suffered discrimination because of their gender in being automatically disqualified from the parliamentary candidates’ selection process (Jepson and Dyas-Elliott v The Labour Party and Others [1996] IRLR 116).

The other example of positive discrimination involves the Police Service of Northern Ireland. The PSNI was created in 2001 following the Belfast or Good Friday Agreement in 1998. The PSNI replaced the old Royal Ulster Constabulary (RUC) which was largely seen as a biased or sectarian police force by most Roman Catholics in Northern Ireland.

According to figures produced by the official Patten Report, the RUC was overwhelming Protestant in composition (91.7% to 8.3% Roman Catholic).

One of the key recommendations of the Patten Report was that:

“An equal number of Protestants and Catholics should be drawn from the pool of qualified candidates.” [para. 15.10]

This led to a deliberate 50/50 recruitment policy in which half of the candidates recruited to the PSNI had to come from a Roman Catholic background.

That said, there was significant criticism of the 50/50 recruitment policy coming from the Unionist and Loyalist community in Northern Ireland – who were never going to be reconciled to the demise of the RUC in any case. The recruitment policy was only ended in 2011 by Owen Patterson MP, the then Conservative Secretary of State for Northern Ireland. Predictably, this development did not please the Nationalist and Republican community in Northern Ireland.

Affirmative or positive action

In the United States of America, of course, there is a completely different approach to the promotion of diversity and equality from what we would understand in the UK and the European Union. The Americans, for example, are very keen on affirmative action (or positive discrimination) and often employers will speak of filling quotas i.e. recruiting a certain number of African Americans or Hispanic Americans. This practice of affirmative action or positive discrimination is an attempt by the Americans to overcome the problems of historic and entrenched racism in their society. In the UK and the European Union, we too have had our problems with under-representation of certain groups in the work-place, but any attempt to introduce positive discrimination has been much more limited in scope.

Affirmative action has its limits: the ticket policy at Afrofuture Fest would, however, appear to be a breach of the Civil Rights Act 1964 (Title II) which states that:

“All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination on the ground of race, color, religion, or national origin.

The UK and EU approaches to positive discrimination

Limited positive action or discrimination has, for some time, been tolerated by the Court of Justice of the European Union where employers gave preference, as part of an equality policy, to female candidates over suitably qualified male candidates in order to address gender imbalances in the work-place (see Kalanke Freie Hansestadt Bremen (1995) C-450/93 and Badeck and Others (2000) C-158/97).

The Equality Act 2010 does, admittedly, permit what is referred to as ‘positive action’ in fairly limited circumstances and it has been observed that it does not really advance the law very much in this area.

Certainly, in terms of the public sector equality duty, organisations may be permitted to take specified forms positive action in the work-place to eradicate or minimise forms of discriminations e.g. ‘the need to tackle prejudice and promote understanding’ (see Section 149(5) of the Equality Act)

Section 158 of the Act permits an employer to take positive action to help individuals with a protected characteristic to overcome or minimise such a disadvantage. Such action on the part of the employer must, however, be a proportionate means of achieving this aim.

Section 159 also permits an employer to take positive action in recruitment and promotion in relation to people with protected characteristics. The employer will only really be able to utilise this provision if candidates for a job or a promoted post have the same or similar qualifications. In such situations, the employer will able to consider if candidates with protected characteristics are at a disadvantage or are under represented in matters of recruitment or promotion.

There is one important exception to the rules on positive action contained in the Act: it will not be illegal for an employer to treat a disabled person more favourably in comparison to a non-disabled person.

Conclusion

In the UK, positive discrimination in recruitment can be lawful under very limited circumstances. In other words, it is a practice which, if objectively justified, can be used to overcome historical patterns of discrimination e.g. to address the woefully low numbers of female politicians or the under-representation of Roman Catholics in the Police Service in Northern Ireland.

Such arrangements permitting limited positive discrimination tend to be governed by ‘sunset clauses’ i.e. they have a built in expiry date, so they will not last forever. Furthermore, positive discrimination is really only legitimate  in so called ‘tie-break’ situations where several applicants have the same qualifications and experience, but as a matter of public policy, for example, a female or minority ethnic applicant is given preference in order to address historic diversity imbalances in that particular work-place.

The Americans, on the other hand, have tended to pursue a very explicit policy of positive discrimination or affirmative action by placing an emphasis on the filling of quotas – either, for example, in employment or education. Such an approach places a legal obligation on employers and service providers (colleges and universities) to ensure that certain minimum numbers of people from racial or ethnic minority backgrounds are given a job or a place in training or education.

As we have seen with the ticket policy for events such as Afrofuture Fest, positive discrimination can be controversial and potentially unlawful.

Copyright Seán J Crossan, 8 July 2019

Sexism in the UK

Photo by 🇨🇭 Claudio Schwarz | @purzlbaum on Unsplash

If you read this Blog fairly regularly, you will be aware that the issue of equality (or should that be the lack of equality?) is a common theme.

Depressingly in 2019, print and online media are full of stories which reinforce the fact that, as a society, the UK still has a long way to go in terms of gender equality. From the entrenched gender pay gap; to pregnancy and maternity discrimination; and the prevalence of incompetent male leaders, it still looks very much like a man’s world.

If you don’t believe me or think that I’m painting an overly bleak picture, please read about the latest research carried out by the Young Women’s Trust which found that 2 out of every 5 female managers believes that the place where the work suffers from sexism.

Despite the presence of legislation, such as the Equality Act 2010, women still struggle for equality in the work-place. Still don’t believe me? Just ask the female employees of City of Glasgow Council who had to fight tooth and nail to achieve equal pay earlier this year.

A link to a press release from the Young Women’s Trust can be found below:

https://www.youngwomenstrust.org/what_we_do/media_centre/press_releases/987_two_in_five_female_bosses_say_their_workplace_is_sexist

A link to an article in The Independent about the Trust’s research can be found below:

https://edition.independent.co.uk/editions/uk.co.independent.issue.200619/data/8965916/index.html

CopyrighSeán J Crossan, 20 June 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?

Postscript

On 26 May 2019, The Independent reported that Nike had promised not to impose financial penalties on those female athletes who became pregnant and who were in receipt of sponsorship from the corporation. This was undoubtedly due to the considerable, adverse publicity which the story had generated around the world.

A link to the article in The Independent can be found below:


https://edition.independent.co.uk/editions/uk.co.independent.issue.260519/data/8930341/index.html

On 17 August 2019, the BBC reported that Nike had removed the offensive clause from its contracts with female athletes.

A link to the story can be found below:

Allyson Felix: Nike changes policy for pregnant athletes

Six-time Olympic gold medallist Allyson Felix says female athletes will “no longer be financially penalised for having a child” after Nike changed its sponsorship contracts.

Copyright Seán J Crossan, 17 & 26 May and 17 August 2019