Employment News and Announcements

I read recently about a discrimination case which lead to an award of compensation of over £180k. It was the type of case which goes beyond the legal press, receiving coverage in the popular press, a woman establishing that her employer discriminated against her by failing to agree to a slightly earlier finishing time to take account of childcare responsibilities. The Employment Tribunal clearly found no adequate justification on the part of the employer for the strict adherence to the original working hours.

The case is worth a read as regards some background facts. Interestingly the Claimant had offered to work the same number of hours with an earlier start time which had been rejected by the employer. The Claimant had also run a number of other discrimination related claims which the Tribunal rejected, some involving a works trip for what seemed to be a social trip to New York.

Workers now enjoy a wide range of options associated with family issues to request flexible working. A key point in my view involves the procedure employed to address requests. Many employers have flexible working policies to apply and sometimes improve the statutory rules. Not every request has to be agreed but importantly the request must be respected and considered properly. I have regularly considered how flexible working requests have been dealt with in real cases. Sadly, they have often been treated by employers as being an inconvenience, when the rights associated with the request is a statutory right is an important element of family friendly policies.

The right to make the request can involve a proposed temporary adjustment, eg until a child is 5, or something more permanent. The employer should arrange a meeting to discuss the request and if turned down, it should lead to an appeal. Any changes agreed can lead to a contractual amendment. Turning down a request should reflect a sound business reason, which should be explained to the worker.

Returning to the case involving the high award. No doubt the estate agent employer will reflect upon how that particular request was dealt with. By insisting upon the adherence to the later finish the Tribunal concluded that this was an act of indirect discrimination. The high award arises from an assessment of loss and the additional remedy of compensation for injury to feelings.

Employment law is essentially based upon a contract between two parties. Over the last 50 years Government has legislated to add layers of law upon the contract, arising from UK policy and until 2020 from EU law. The contract is no longer supreme, think for example of the minimum standards implied through the Equality Act, the Working Time Regulations, the minimum statutory notice periods, and I could go on. Flexible working requests are a part of this analysis and whilst a refusal may reflect a decent business case, it will not assist the employer if that reason evidences a form of unlawful discrimination. Get it wrong and discrimination really will matter, not least for the company balance sheet.

As a society, discrimination is no longer acceptable whether in the workplace or not. Gone are the days when mere “banter” was acceptable and for the majority of us, we took this in our stride, trying to fit in and be part of a group in a workplace.

A person should not have to endure discriminatory or racist comments or even take part in office banter merely to fit in and be accepted, or to fear losing their job if they do not take part, in what many people will describe as harmless fun and banter between colleagues. Where do you draw the line? A person’s mental wellbeing can be affected by crude and humiliating comments regardless of whether they appear to be accepting of it or not.

This was the case for a car salesman, who recently won an unfair dismissal claim.

A British Asian man joined a dealership, which was male dominated. From the commencement of his employment he was subjected to racist nicknames and practical jokes, such as being known as “poppadom”. In an effort to fit in with his work colleagues he went along with the jokes. A works WhatsApp group was even set up when sales staff were put on furlough, where the crude and offensive jokes continued.

He felt that he had no choice but to go along with this behaviour as he did not want to be an “outsider”, he was trying to integrate and to not lose his job. However, this changed when on a visit to the showroom with his son on a day off, a male colleague threw a banana on the floor as he wanted to see how he reacted.

Being unable to endure the comments any longer, he complained but his complaints were not taken seriously and as a result went on sick leave. He later raised a grievance to his bosses about the treatment he was receiving, particularly in relation to one colleague. However, to his surprise he was later sacked on charges of race and sex harassment towards his white colleague, on the basis of racially offensive memes and jokes shared in a WhatsApp group. His colleague had however resigned before facing any disciplinary action, but he did send to bosses screenshots of the WhatsApp chat in which they shared memes.

An Employment Judge ruled there was no evidence that his work colleague was offended by his messages and the wider office culture was not investigated or considered. The Judge criticised the working environment at the dealership, explaining that the culture was “laddish”, crude and immature and this manifested in the day-to-day interactions in the workplace on the sales floor. The Employment Judge found that the comments amounted to deliberate and aggressive expressions of misogyny, hostility towards homosexuality and racism. In continuing, the Judge stated, “that sort of culture allows other forms of offensive language and behaviour to be excused under the misnomer of “banter”. The Judge further stating, “the messages are a product of the culture he came into and which has been allowed to normalise without censure by the employer’s lower management.” The Tribunal resolved the case in favour of the Claimant, with compensation to be assessed.

We should never feel under pressure to fit in and be part of a working environment by subjecting people to or joining in with office banter which demeans, humiliates, or embarrasses a fellow work colleague. We should not feel pressured to take part and conform to this type of behaviour. An employer has a duty to protect their employees and they have a duty to investigate when an employee raises an issue with any form of discrimination.

By discriminating against someone, this means that you are treating them less favourably because of something which is unlawful e.g. a person’s gender, race, or disability. The Equality Act protects a person from discrimination and race is one of the nine protected characteristics in the Act and the legislation is there to protect people against discrimination.

If you believe that you are the victim of discrimination contact us for further advice, remembering that there are strict time limits which apply.

Written by Karen Ogden

We act for former employees of the above Liverpool based construction company which went into administration on 1 June 2021. We are pursuing Tribunal claims for a failure to consult over the redundancies and some of our clients have also claimed for notice pay, redundancy pay and holiday pay not received.

All employees made redundant will be entitled to seek the protective award and up to 8 weeks of pay due to the failure to consult, even if you had very short service.

You will only receive the compensation if you are a Claimant and the time limit to bring a claim will expire on 31 August 2021. If you do not claim by then your claim will be out of time. We will accept new claims for clients up 26 August. Ideally we would like to start your claim as soon as possible.

Remember we act no win no fee and you are eligible to join the group claim we have started in the Tribunal.

Get in touch by phone 0151 3091527 or 07503 357248, or by email
karen@stephenpinder.co.uk
sjp@stephenpinder.

Don’t miss out, claim before it’s too late
 

In about December 2020 I wrote my first review of the impact of the covid vaccine in relation to employment, I recall that the piece even referred to the “no jab-no job” analysis. A further article followed earlier this year when the media had started to focus blame upon those not having the vaccine, identifying those preferring not have the vaccine as being selfish. The latest script involves warning the younger refuseniks that their stance will mean that they may not be able to have as much fun. The potential limits on the value of the double jab is though reflected in the fact that entry to Premier League football matches may require the double jab, a recent negative test, and a mask to be worn inside the stadium. If that happens, freedom day may have a new meaning.

I recently advised a client on a new covid issue, at least for me. My client could do his job in the stores, but had some serious underlying problem health conditions. He was advised to shield to protect himself and was absent from work. It appears that the employer treated this as sickness absence and after a few months my client was in receipt of no pay. After being off for several months the employer flagged up that the absence had engaged the capability procedure.

The employer threatened to arrange a hearing with a view to possible dismissal as my client was continuing to shield. I was pleased that the situation was resolved by agreement following negotiations involving my client’s trade union representative, with a decent termination payment under a settlement agreement. I had not encountered this scenario before, involving a capability dismissal threatened for a person capable of working, and prior to the shielding instruction having a good attendance record.

My advice focused upon the reasonableness test for unfair dismissal, noting that the stores work could be done on a temporary basis by someone covering the role, and that the employee was in effect following Government and medical advice. My client was also likely to be classed as a disabled person, due to the underlying conditions, and I planned to pursue allegations of discrimination related to reasonable adjustments and discrimination arising from the disability. What could have been an interesting case was curtailed by the deal, but I expect and hope that an Employment Tribunal would have taken some persuading that the employer’s approach was lawful.

In the end the employer got rid of their employee, even though it cost them. Another factor relevant to my client’s decision is becoming an area of difficulty for employees considering starting a Tribunal case. I am having Tribunal hearings listed in discrimination cases up to March 2023. This delay is impacting negatively upon the interests of justice, and I know that my client ultimately took the offer in part to secure something now. Justice delayed is justice denied and the prospect of waiting up to two years to get into a Tribunal on the “interesting case” was always coming second to the tax free lump sum paid into the bank the following week.

CASA FREE LEGAL ADVICE SURGERY

A legal advice surgery will take place at the Casa on THURSDAY 26 AUGUST 2021 from 10.00am – 1.00pm

This is a FREE drop-in event to be attended by solicitors Stephen Pinder and Peter Kneale

Free initial legal advice will be provided on all legal areas, including the following:-

 Employment law

 Unfair dismissal and discrimination

 Contract disputes

 Personal injuries

 Industrial deafness

 Asbestos conditions

 Benefit cases

The Casa is located at 29 Hope Street, Liverpool, L1 9BQ

If you need legal advice come along on the 26 August, and bring with you any documents relevant to your legal problem.

Anne Dopson was unhappy in her workplace by being referenced as a grandmother, pursuing a claim of age discrimination. Ms Dopson is a grandmother and therefore the statement made was factually correct. She pursued a claim in the Employment Tribunal asserting that the grandmother link was a form of detriment, in effect making a negative comment about her age.

The Tribunal decided that the reference was discriminatory, raising an interesting point about the context of a statement. In a social context calling a person grandma or grandad may be perfectly fine, and may not cause upset. In a work context otherwise innocent comments can have a different meaning. I happened to watch a TV drama involving police co-workers, who were seen playing golf whilst waiting to interview a witness who worked at a driving range. The black officer hit a good shot and a white officer called him Tiger. The black officer replied about whether that name was only used because he is black. Think for example of an employer referring to a disabled worker in an internal report as “our man in a wheelchair”.

The decision confirms that context is everything and also that a worker should not be defined by a particular characteristic. It would be fine to identify someone as a fan of a particular football team, but if the identifying issue is one identified in the law, it may be unlawful if the connection is one causing a detriment. Some years ago I remember advising when the Age Equality Regulations were introduced, now in the Equality Act. I advised that age should no longer be a relevant factor in a workplace, and that is confirmed through the case involving Ms Dopson. The lesson for employers is to refresh training and policies associated with equality issues, and to stress the need to avoid comments linked to the protected characteristics from the Equality Act, eg age, race, disability etc.

There is another big lesson lost in the press reports. Ms Dopson waited some months after the grandmother comment before presenting her claim. There are strict time limits applying to employment law cases, including discrimination allegations, usually 3 months to start the legal process. Even though Ms Dopson pursued an internal grievance the Tribunal decided that the reference to the Claimant as grandmother was an isolated incident and that the claim had been lodged out of time, meaning that the discrimination claim failed. The lesson is to take early legal advice on what can be a technical legal area, and not to rely on the fact of pursuing a grievance as a means of extending the limitation date for lodging a Tribunal case. Every case needs consideration on its own facts but the lesson is clear, there is little point in winning if your case is lodged out of time.

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