An employment tribunal has decided that easyJet’s shift practices were indirectly discriminatory towards two breastfeeding employees on the grounds of sex. This arose through easyJet’s refusal to allow the employees (who were crew members) to have bespoke shift arrangements. The employees had requested not to be rostered for shifts longer than eight hours. The tribunal also decided that easyJet had suspended the employees on maternity grounds and during that suspension had failed to pay them their correct pay and had failed to offer suitable alternative work.

This case is useful in three main respects:

• It gives a real-life example of the operation of some of the various rights that breastfeeding mothers enjoy and the associated obligations on employers.

• It demonstrates the level of case preparation that an employer needs to undertake in order to successfully argue objective justification. The picture painted by the judgment is that easyJet was not able to present hard evidence to back up its assertion that allowing bespoke shifts would cause serious operational difficulty.

• It demonstrates the type of recommendations that tribunals might make in discrimination cases.

The case also makes the observation that it is not possible for a mother to state with certainty when she expects to cease breastfeeding and it was not reasonable for the employer to ask this question. 

Click here to talk to one of the team.

It’s that time of year again….when lawyers warn employers of the risks of tribunal claims from staff at Christmas.  Although this makes us sound a bit like Scrooge the main thing is that you and your colleagues enjoy Christmas!

Christmas Party

In order to avoid any discrimination claims everyone in the business should be invited to the Christmas party whether or not they are on sick or maternity leave.

If you are planning to hold the Christmas party in the office you may also want to consider rules about misuse of the office photocopier!!!

If you employ staff under the age of 18 remember it is still an offence to consume alcohol under age.

Also ensure that any comedy entertainment does not offend people based on their religion or sexual orientation for example.

Fighting at the Christmas Party

The High Court has recently decided that a company was not vicariously liable for the assault by one of its directors on an employee following the company’s Christmas party.

Following the Company’s Christmas party, several party guests moved onto a hotel to continue the celebrations. M (managing director) and B (an employee) engaged in a heated discussion regarding a work matter. M lost his temper and assaulted B, and B was knocked out and sustained brain damage. 

B claimed that the Company was vicariously liable for the actions of M and claimed damages, however the claim was rejected by the High Court. The High Court decided that as the assault was committed after a work social event, and as the assault occurred in the context of an entirely independent, voluntary discussion regarding work during a discreet early hours drinking session, the Company was therefore not vicariously liable.

However, that is not to say this will be the same decision every time.  The Court could not find a sufficient connection between the Company arranged Christmas party (which is an extension of work) and the assault.  Where the assault took place at the Christmas party the decision is likely to be different.

Drunken promises

In an Employment Appeal Tribunal (EAT) an employee was promised by his manager at the Christmas party that his salary would double. The employee subsequently resigned, claiming constructive dismissal on the grounds that his manager had broken this promise.

The EAT decided that as the conversation took place at the Christmas Party the manager did not intend to enter into any legally binding contractual commitment.

Although this is good news for employers – the company in this case was lucky and the decision might have been different.

The headache the next day

Where employees might be required to work the day after a party – ensure that employees are not working under the influence of drugs or alcohol.

Employers might also want to consider placing a cap on alcohol served – unfortunately, free bars can be seen to endorse excessive binge drinking and therefore any resulting drunk behaviour.

Joe Bloggs has tagged you in a photo on Facebook

The last thing an employer needs is for inappropriate images (or worse videos) of the Christmas party circulating on social media sites.  Employer should consider implementing social media policies and communicating those to staff beforehand.

Secret Santa

Employers should encourage employees to consider in advance whether their choice of Secret Santa gift might cause offence or be construed as bullying or harassment.

Public Holidays

There are three public holidays over the Christmas period so employers might want to draw up rotas and confirm with employees the days they will be required to work over the holiday period to avoid any confusion or upset amongst staff.

Christmas Bonus

It used to be common practice at this time of the year for employers to give employees Christmas bonuses as a gesture of goodwill. However, in recent years, employers often ask whether or not they can do away with the bonus going forward.  This all depends on the contract of employment.

If an employee’s contract of employment doesn’t mention a bonus but one has been paid over a number of years, an employee may argue that such a bonus is an implied term of his/her employment contract.

Additionally, in calculating Christmas bonuses employers should ensure that if a bonus is based on company or team performance throughout the year that employees who have been absent, for example, maternity or medical reasons, should not be discriminated against or treated less favourably than employees who have not been absent on such leave.

Snow Day

If an employee fails to attend work due to snow or other travel disruption, they have no statutory right to be paid.  Employers should think about an adverse weather policy which could include the possibility of staff working from home or taking annual leave.

And finally – have a wonderful Christmas from all at Morgan LaRoche Solicitors.

This year we have already seen employers face reputational or legal challenges on requiring a receptionist to wear high heel shoes, the banning of Muslim head scarfs and burkhas and, ACAS telling employers they are missing out on talent by not employing workers with visible tattoos. 

The legal and PR ramifications for a strict or discriminatory dress code can be costly. So, apart from specific industries where dress codes are obviously very relevant (such as occupations involving health and safety) should employers bother with a dress code?   

Fraught with difficulty
The legal positions start from the premise that employers have a right to project a company image and set a dress code, particularly for customer or client facing roles.

Employers setting dress codes are at risk not just of claims of religious discrimination but also of claims of sex discrimination, disability discrimination and discrimination on grounds of gender reassignment.

Employers must ask themselves whether the dress code can be objectively justified. Will clients turn away or will an employee provide a better service or enhance a brand or profession by a certain sort of dress?

A balancing act
Assuming an employer can justify a dress code, it then falls to a court to assess if that dress code is a proportionate means of achieving a legitimate aim. This is effectively a balancing exercise between the employer’s requirements and the impact or inconvenience to the employee.

A strict “no tattoos” policy, for instance, could leave an employer open to challenge on grounds of race or religious discrimination for Polynesian or Māori tattoos which are considered part of cultural heritage.

Any employer drafting a dress code needs to consider these issues, ideally in consultation with staff. Be prepared to make reasonable adjustments to your dress code in relation to disabled employees. It is possible to stipulate different clothing requirements for different sexes (for example, a shirt and tie for a man) provided that the overall effects of the rules are applied equally. However, for employees undergoing gender reassignment this would need to be flexibly applied.

Unfortunately there is no “one size fits all” policy.  For advice on dress code policies please contact us.

The Women and Equalities Committee has recently published a report on pregnancy and maternity discrimination showing that the number of expectant and new mothers forced to leave their jobs has almost doubled since 2005.
 
The report calls for UK women to have protections similar to those in Germany where from the beginning of pregnancy until four months following childbirth, employers can only dismiss an employee in very rare circumstances and need government approval to do so. The report also recommends:

• A substantial reduction in the £1,200 fee for women taking pregnancy-related discrimination cases to an employment tribunal.
• Increasing the three-month limit on taking cases to the tribunal to six months.
• Assurances that rights and protections would not be eroded, given the uncertainty following the vote to leave the European Union.
• A detailed plan to be published by the government within the next two years.
• Increasing protection for casual, agency and zero-hours workers.
• Protection from redundancy until six months after a return to work.

Business Minister Margot James MP has said that the government will consider the recommendations and respond “in due course”.
 
In similar news, on 14 September 2016, the Equality and Human Rights Commission (EHRC) announced that a number of employers, including Barclays, Royal Mail and BT, have joined the EHRC’s initiative Working forward – supporting pregnancy and maternity rights. The aim of the initiative is to eradicate discrimination against pregnant women and mothers. The founding members will encourage other businesses to follow their example by sharing their knowledge, experience and good practice with businesses which sign up.

Click here to contact us to discuss in more detail.

 

A Scottish employment tribunal has determined the compensation arising out of a discriminatory shared parental pay policy. In the case, the employee, a father, argued that Network Rail’s policy on shared parental leave and pay directly discriminated against men on the basis that mothers were entitled to enhanced shared parental pay while fathers were entitled only to the statutory level of pay. However, by the time of the tribunal hearing, Network Rail no longer denied the claim, leaving the tribunal to focus only on compensation. The tribunal awarded the employee approximately £23,000 including £6,000 injury to feelings and £16,129 for future loss, being the difference between statutory shared parental pay and what the employee would have received had he been entitled to the enhanced level of pay. Click here to talk to one of the team.

Seventeen care workers have recently submitted a claim in the ET against council contractor Sevacare for its failure to pay the national minimum wage. Since 2010 Sevacare have contracted with local authorities to provide services to 9,600 people across England per week.

Workers of Sevacare contend that because they were not paid for travelling between clients, their pay amounted to £3.27 per hour falling short of the current minimum wage of £7.20 per hour. Sevacare insist that its workers were paid £550 per week which in total, amounts to £7.85 per hour and exceeds the national minimum wage.

The HMRC has announced an investigation into the working practices of the largest care providers.

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The results of a survey undertaken by the Equality and Human Rights Commission (EHRC), suggests employers are ill-informed of the current law on recruitment. According to the report, less than half of employers checked employees had the right to work in the UK prior to hiring them, while 9% of employers believed that foreign workers were not entitled to the same wage as British ones.

In light of the survey, the EHRC has vowed to send a report to businesses reminding them of their legal recruitment responsibilities. This news came to light in the same week that a company faced criticism for advertising for a personal assistant with a “classic look, brown long hair with B-C cup”.

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In a recent decision, an employment tribunal decided that a group of female retail store employees could compare themselves to a group of male distribution depot employees for the purposes of an equal pay claim.

It has been reported that the sums in issue in these proceedings could exceed £100m and that Asda is now considering its options for appealing this preliminary point.

The fact that equal pay claims can take many years to resolve begs the question whether either equal pay law and/or the system for dealing with claims is fit for purpose in the first place. 

Click here to talk to one of the team.

The Medical Defence Union (MDU) has urged employers to remain vigilant due to the ease at which fake doctors’ notes can be obtained online. It stated that technology has resulted in criminals being able to easily draft fake prescriptions, certifications and NHS sick notes which can be used to defraud employers.

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With a combined total of over 40,000 workers on zero hours contracts, Suffolk brewer Greene King, pub franchise JD Wetherspoon and cinema chain Everyman cinema are the latest companies to provide its workers with the opportunity to switch from zero hours contracts to permanent contracts.

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HMRC are considering whether to investigate the working practices of delivery company Hermes in light of the recent allegations made by self-employed couriers that they were not being paid the national living wage.

As self-employed couriers, Hermes are not required by law to pay its couriers the national living wage. However, in light of their working practices (which included the compulsion for couriers to work during times of sickness and bereavements) the government has urged HMRC to investigate the employment status of couriers. 

Click here to read more.  

The Resolution Foundation thinktank has published a report that suggests the government will fall short of its £9.00 an hour 2020 National Living Wage target. According to the report, Brexit will prevent this rate from being met. Instead, the thinktank estimates that Brexit will result in low-skilled workers losing 40p an hour in the next four years. 

Click here to read more.

On 3 September 2016, a report was issued that questioned the working practices of an Asos distribution centre. According to the report workers at the factory are subject to frequent work searches and prolonged surveillance which has resulted in workers refusing to take sick days, holidays or toilet breaks in the fear of being dismissed. The report further suggests that workers are not being paid for overtime and are docked wages for arriving late to work.

The employer has dismissed the claims. However, in light of the allegations, the Commons Business, Innovation and Skills Select Committee, has vowed to investigate the matter at a later date. 

Click here to read more.