Author Archives: Sarah Robinson

  1. Disability Discrimination – when is cancer a disability?

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    Certain conditions are automatically deemed by the Equality Act 2010 to be disabilities.  These include cancer, HIV and multiple sclerosis irrespective of whether they are symptomatic.  Workers who are disabled within the meaning of the Equality Act are, of course, protected from being unlawfully discriminated against in the course  of their employment and their employer will be under a duty to consider making reasonable adjustments.

    The recent case of Lofty v Hamis t/a First Café considered the question of what cancer is for these purposes. Ms Lofty suffered from a pre-cancerous lesion which could result in malignant melanoma or “skin cancer”.  She underwent a surgical procedure to remove the lesion.  She was later informed that her latest biopsy was clear of any possible cancer.  She was signed off work for surgery and thereafter she continued to be signed off for this and other related health issues and due to suffering extreme anxiety.   She was ultimately dismissed by her employer.  Ms Lofty complained that her dismissal was an act of unlawful disability discrimination and that she had a deemed disability, namely cancer, and was therefore protected under the Equality Act.  Her employer disagreed, disputing that she was a disabled person for the purposes of the Act.

    The employment tribunal found that because Ms Lofty was successfully treated for a pre-cancerous condition she had never had cancer. Ms Lofty appealed to the Employment Appeal Tribunal (“EAT”)

    The EAT disagreed and held that the law does not distinguish between invasive and other forms of cancer and that there was no justification for the introduction of distinctions between different cancers or for a tribunal to disregard cancerous conditions because they had not reached a particular stage.  The evidence explained that “pre-cancer” may be regarded as medical shorthand for a particular stage in the development of cancer; it does not mean that there is no cancer for the purposes of the Equality Act.  She was therefore deemed to be disabled on account of having had cancer.

    The decision confirms that cancerous conditions will be  deemed disabilities under the Equality  Act irrespective of the stage they have reached.

     

  2. Minimum Wage Increase

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    From 1 April 2018 the following minimum wage rates apply:

     

    • 25 years and above £7.83 (previously £7.50)
    • 21-24 years £7.38 (previously £7.05)
    • 18-20 years £5.90 (previously £5.60)

    Younger than 18 £4.20 (previously £4.05)

  3. New employment tribunal statistics published

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    For the period October to December 2017, single employment tribunal claims increased by 90% following the abolition of tribunal fees.

    This has led to the tribunals becoming extremely busy so that new claims are currently taking many months before being listed for hearing.  Some cases which we issued earlier this year have been listed for hearings next year.

  4. Taxation of Termination Payments

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    From 6 April 2018 new rules in relation to the taxation of termination payments come into force.

    Previously where a written contract of employment was silent as to notice pay,  an employer could make a notice payment gross and it fell within the £30,000 exemption from tax available on termination.  This would often be beneficial to both employer and employee as the employee could receive a greater sum than he or she would otherwise have been entitled to at no additional cost to the employer.  Instead of paying the tax and national insurance on the payment to HMRC the employer could pay the gross sum to the employee.

    Where there is a written pay in lieu of notice clause in the contract of employment any notice payment will be fully taxable as it is considered to be a contractual payment.

    As from 6 April, however, even if there is no pay in lieu of notice clause in your contract of employment, you will be deemed to have received a payment in lieu of notice in respect of basic pay for any unworked notice period.  This will be fully taxable and subject to national insurance.  Any benefits received over and above basic pay for unworked notice can still fall within the £30,000 exemption from tax and national insurance.

  5. Claims for disability discrimination by cancer sufferer rejected

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    In the case of Charlesworth v Dransfields Engineering Services Limited the Employment Appeal Tribunal held that the Employment Tribunal was entitled to find that an employee’s absence for cancer treatment was not the reason for his dismissal even though his two month absence from work led his employer to identify that they could do without him.

    Mr Charlesworth was the manager of the company’s Rotherham branch. From 2012 onwards the company was looking for ways to reduce costs due to reduced profitability. In 2014 Mr Charlesworth underwent surgery for cancer and was off work for about 2 months. Whilst Mr Charlesworth was off sick the company identified the opportunity to save around £40,000 per annum by deleting his role and distributing his responsibilities amongst other staff at the branch.

    The company consulted Mr Charlesworth about his potential redundancy and alternatives to redundancy were considered but no vacancy was identified. Mr Charlesworth was made redundant and subsequently brought claims for unfair dismissal, direct disability discrimination and discrimination because of something arising in consequence of disability.

    The Employment Tribunal found in favour of the Company and dismissed Mr Charlesworth’s claims. In relation to the claim for discrimination for something arising in consequence of disability, under s.15 Equality Act, the tribunal noted that there was some link between Mr Charlesworth’s absence and his dismissal because his absence gave his employer an opportunity to identify the ability to manage without him. However, the tribunal held that this was different to saying that Mr Charlesworth was dismissed because of his absence.

    Importantly, in the tribunal’s view, Mr Charlesworth’s absence was not an effective or operative cause of his dismissal; it merely enabled the company to identify something that it could have identified in other ways and other circumstances. The matter that caused Mr Charlesworth’s dismissal was the company’s view that it could do without him.

    Mr Charlesworth appealed to the Employment Appeal Tribunal (“EAT”). The EAT referred to two leading cases on the point and held that s.15 cases require a two stage approach. First, there must be something arising in consequence of the disability, secondly, the unfavourable treatment must be because of that “something”. The EAT held that the tribunal had properly directed itself to the causation test and permissibly concluded that Mr Charlesworth’s absence was merely the occasion on which the company was able to identify its need to manage without him, not the cause of his dismissal.

    In this case the employer was able to show that they had been looking to make costs savings long before Mr Charlesworth’s sickness absence. The outcome may not have been the same had they not been able to demonstrate this. Please contact us for advice if you wish to discuss your own situation.

    If you would like to read the full judgment, you can find it by clicking here

     

  6. Dress codes and discrimination

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    CANNES, FRANCE - MAY 18:  Marilou Berry, shoe detail, attends the "Inside Out" Photocall during the 68th annual Cannes Film Festival on May 18, 2015 in Cannes, France.  (Photo by Ian Gavan/Getty Images)

    Workplace dress codes have hit the headlines recently with one employer reportedly sending a female employee home after she refused to wear high heels, JP Morgan Chase introducing a new, relaxed dress code and  the Advocate General considering whether a Belgian company’s dress code banning the wearing of a Muslim headscarf while on duty amounted to direct or indirect discrimination.

    So what are the rules about company dress codes?  Most employers have a dress code policy. This can be for a number of reasons including to communicate a professional or corporate image, to ensure that customers or members of the public can easily identify staff or for health and safety reasons.  For example, the wearing of jewellery and certain items of clothing may be prohibited for employees working with machinery and those working with food may be required to tie their hair back or cover it.

    Employers are entitled to have a policy that sets out a standard of dress and appearance for their organisation.  However, dress codes must not be discriminatory and should apply to both men and women otherwise an employer risks claims of unlawful discrimination on the grounds of sex, religion, disability or gender reassignment.

    Some press reports have referred to the requirement to wear high heels as being sex discrimination because a man would not be required to wear high heels.  Treating a woman less favourably than a man in the same circumstances amounts to direct sex discrimination.  However, in the case of Smith v Safeway Plc, the Court of Appeal held that having different requirements for the women in a dress code will not amount to sex discrimination where the dress code applies a consistent standard of appearance and taken as a whole, rather than item by item, neither gender is treated less favourably in enforcing that principle.  What this means is that the dress code should not be more strict or onerous for one gender and should be enforced consistently.

    The Employment Appeal Tribunal has held for instance that a dress code that required a man to wear a shirt and tie but women only to dress appropriately and to a similar standard will not necessarily be unlawful discrimination (Department for Work and Pensions v Thompson EAT 0254/03)

    By contrast, a woman who was dismissed for refusing to wear a revealing low cut top was successful in her claim for sex discrimination as a man would not have been required to wear an equivalent uniform (Smith v Rees ET 251040/12)

    As well as sex discrimination, dress codes can potentially give rise to other types of discrimination.  If an employer prohibits a transsexual person from wearing a skirt where other women are permitted to this could amount to unlawful discrimination on the grounds of gender reassignment.

    Policies that restrict an employee’s right to wear items of clothing or jewellery that reflect their religious beliefs can also amount to unlawful discrimination on the grounds of religion.  These cases often involve balancing the competing interests of the employer’s aims of having a dress code with the impact on the employee. The case of Eweida v British Airways Plc 2010 attracted a lot of publicity.  BA operated a policy which forbade the wearing of visible jewellery.  The European Court of Human Rights upheld Ms Eweida’s claim of indirect discrimination.  She wished to wear a two inch cross on a necklace visibly as a symbol of her Christian faith. The Court held that the interference with Ms Eweida’s rights in this case could not be objectively justified.  While BA’s wish to project a certain corporate image was legitimate, the Court of Appeal had accorded it too much weight.  Ms Eweida’s cross was discrete, would not have detracted from her professional appearance and would not really have encroached on the interests of others.  The outcome may, however, be different if there were health and safety considerations.  For instance in the case of Chaplin v Royal Devon & Exeter NHS Foundation Trust a tribunal found that a Christian clinical nurse had not suffered indirect discrimination where the Trust did not allow her to wear a crucifix on a necklace at work.   It was held that the Trust’s policy could be objectively justified.  It pursued the legitimate aim of protecting the health and safety of staff and patients.

    Employers must also bear in mind any disadvantage to disabled employees as a consequence of the requirements of a dress code.  The employer has a duty to make reasonable adjustments to remove the disadvantage to the disabled employee.

    In the recent case of Achbita and another v G4S Secure Solutions NV the Advocate General considered whether a Belgian company’s dress code banning the wearing of a Muslim headscarf while on duty amounted to direct or indirect discrimination.  The AG’s conclusion was that it did not amount to unlawful direct discrimination.  The ban affected all employees equally, it was not based on stereotypes or prejudice against religious beliefs.  The employer’s objective was for  religious and ideological neutrality.  Such a policy was a legitimate choice given the wide range of clients to whom the company’s services were provided.   The imposition of the dress code was held to be appropriate and necessary for achieving this objective which could not be achieved by more lenient measures.

  7. £250,000 damages awarded for maternity discrimination

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    maternity discriminationCentral London Employment Tribunal has ordered YOO Limited to pay £250,000 in damages to an employee after ruling that she was unfairly constructively dismissed and subjected to detrimental treatment because of pregnancy or maternity.

    Julie Humphryes claimed that she was forced out of her job at the company because of sexist bullying. She alleged that she was marginalised after taking maternity leave in July 2012.

    Ms Humphryes said that she was subjected to sexist remarks prior to her maternity leave, such as being asked in a meeting whether she really wanted to be a “supermum”.

    Ms Humphryes, a leading architect and designer, helped to design a luxury residential development which featured in Homes and Gardens Magazine whilst she was on maternity leave but her male colleague received all the credit.  After she complained about this lack of recognition of her work, the company’s CEO, Chris Boulton, commented that she was exhibiting “maternity paranoia”.  Ms Humphryes resigned after this claiming that it was the “last straw”.  In explaining his comment to the tribunal, Mr Boulton said that she was, “exhibiting insecurity because she was away from the office and not in touch with what was going on”.

    Ms Humphryes claimed that she had also been subjected to unlawful discrimination by John Hitchcox, who was a joint founder of the company together with renowned designer, Philippe Starck, after he used the phrase, “supermum”.

    Mr Hitchcox had also commented on the extensive travelling involved in the job and the fact that Ms Humphryes had taken her first child with her on foreign business trips.

    The tribunal found that although Mr Hitchcox had the best of motives the remark was reasonably viewed as a detriment and amounted to unfavourable treatment because of pregnancy or maternity.  This amounted to detrimental treatment under the Equality Act.

    The tribunal said that they accepted from Mr Boulton that his general point was that being out of the office might be making her over suspicious about what may be going on at work without her knowledge.  “Nevertheless the specific phrase, “maternity paranoia” has the pejorative tone expressly linked to maternity being the reason for absence”   The tribunal therefore found this was unfavourable treatment.

    The tribunal also found that Ms Humphryes had a legitimate expectation that she should not have been left out of the Homes and Gardens article simply because she was on maternity leave.

    Mr Boulton had also told Ms Humphryes to “calm down” which the tribunal ruled “had the whiff of the patronising” about it and that his demeanour towards her was “laced with an element of sexism”.

    Ms Humphryes was awarded £20,000 for injury to feelings, £72,500 for loss of earnings for not being employed and £176,500 for other losses before deductions.  The tribunal also ruled that Ms Humphryes had contributed to her own dismissal and reduced her award by 10% to reflect this.

    The decision highlights the type of remarks that a tribunal will consider amount to detrimental treatment for the purposes of sex, maternity and pregnancy related discrimination and also that overlooking someone on maternity leave simply because they are off is likely to be discriminatory.

  8. Over 45s face age and sex discrimination

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    middle aged ladyA major report to be published tomorrow has found that women over 45 are being written off by most employers and are being subjected to age and sex discrimination.

    The research, by Ros Altmann, is Government backed and is based on interviews with HR executives, bosses and employees. Damning evidence of women over 45 being overlooked for promotion, training and recruitment has been found.

    The report will state, “Promotion prospects for older women are limited – talent progression for them stops around age 45.  For men it is said to be around age 55.  After that, the attitudes in the workplace usually change”.

    Dr Altmann commented, “This should be as unacceptable as deciding not to promote or train them for career progression because of their race. It is pure discrimination.”

    The television industry is cited as a prime example of this type of attitude with older women far less likely to be retained as main newsreaders or presenters.  Former Countryfile presenter, Miriam O’Reilly, 58, won a landmark age discrimination case against the BBC four years ago after claiming that she was axed from the show when it moved to a primetime slot.  More recently, a former BBC journalist, Olenka Frenkiel, claimed that the corporation wrote off women over 50 as “barking”. She was presented with notice of redundancy in her mid 50s.  Dr Altmann said that the media is one of many industries failing to value women over 45.

    A recent survey of teachers over 50 by the union NASUWT found that 40% had seen job advertisements that suggested older teachers should not apply. Almost a third claimed that they had been subjected to negative comments about their competence due to their age.

     

     

  9. “Exclusive shoe retailer ignored sexual harassment”

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    sexual harassment

     

    Central London Employment Tribunal has been hearing claims of sexual harassment, sex discrimination and victimisation against an exclusive shoe retailer, Barker Shoes.

    The allegations have been made by two female employees who were employed at the company’s flagship store on Regent Street, London.  It is alleged that the store’s retail manager forced saleswomen to sit on his knee, tried to hug and kiss them and described in detail visiting a nudist beach.

    Mr Guerbi, 60, who is also alleged to have stripped to the waist in front of staff in the shop, is accused of recruiting only beautiful girls with nice bodies and then victimising those who rebuffed his advances.

    Ms Bolhasani, Manager of the store, said that Mr Guerbi’s “rampant sexual attentions towards female staff were ignored by Barker”.  She also claimed that in May 2012 Mr Guerbi assaulted her after telling her the rest of the staff hated her.  She described how he had pulled her towards him and pulled her face to try to kiss her and how this had left her feeling traumatised.

    In 2013 it is claimed that Mr Guerbi made a further attempt to force himself upon Ms Bolhasani in a staff room.  When she complained to Barker that the company only employs beautiful girls with nice bodies she says she was told that was why she had been hired. Barker and Mr Guerbi are being sued for sexual harassment, sex discrimination and victimisation.

    Ms Bolhasani is also claiming race discrimination on the grounds that Mr Guerbi allegedly ranted, “all bloody Iranians are aggressive”. Barker and Mr Guerbi strongly deny the allegations.

  10. TUC guilty of maternity discrimination

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    pregnant ladyCatherine McClennan was employed by the Trades Union Congress (TUC) in a managerial role. The TUC represents 54 British trade unions and campaigns for better workplace rights.  Before she went on maternity leave in early 2012 she says her career was on an upward trajectory. However, when she returned to work following the birth of her child she found that many of her responsibilities had been allocated to colleagues. Her position was then removed and she was obliged to compete for an available job against two other colleagues.  She took redundancy and brought a claim for maternity discrimination against the TUC.

    Mrs McClennan said, “I felt I was forced out.  Employees should support mothers who come back from maternity leave but I was sidelined and they tried to cover this up.  The TUC should be an exemplary employer but that couldn’t be further from the truth in my case”.

    The Employment Tribunal in Liverpool ruled in Mrs McClennan’s favour and ordered the TUC to pay an undisclosed sum of compensation.

    Under the Equality Act 2010 it is unlawful for an employer to:

    • discriminate by treating a job applicant or employee unfavourably during the period from the beginning of pregnancy to the end of maternity leave because of her pregnancy or because of an illness she has suffered as a result of her pregnancy or

    discriminate by treating an employee unfavourably because she is on compulsory maternity leave or because she is exercising or seeking to exercise or has exercised or sought to exercise the right to ordinary or additional maternity leave.

    Employees on maternity leave must be treated more favourably than other employees in a redundancy exercise. They must be given first refusal on any suitable alternative vacancies rather than having to go through a competitive selection process.  This is a rare example of lawful positive discrimination.  If an employer does not comply the employee will have a claim for automatically unfair dismissal under s.99 of the Employment Rights Act 1996.

    If you consider that you have been treated unfavourably by your employer during your pregnancy or maternity leave, please contact us in the strictest confidence for advice on your situation.