Was Boris guilty of discrimination

When Boris said that women wearing burka’s looked ridiculous, like letter boxes and bank robbers, did he break any laws?

Since ‘Boris is Boris’ and most people will accept his eminent expertise on looking ridiculous, could his words lead to his collar being felt? If Boris were still Foreign Secretary and he directed his comments at his staff, would it be unlawful?

Two separate branches of law are engaged here.

Criminal law

Cressida Dick, the head of the Met Police has said Boris Johnson’s comments did not reach the bar for a prosecution for incitement to racial hatred.

Employment law

Whist Boris took the precaution of resigning as boss of a government department before he wrote his article, if written a month earlier, he may well have breached the Equality Act 2010. His newspaper article would have/did offend burka wearing women employees of the Foreign Office – a large government employer. As such, the boss would have breached section 13(1) of the Equality Act 2010.

The Act makes it unlawful to discriminate against a worker or treat the worker negatively, on the basis of ‘protected characteristics’ such as religion. Discrimination could be ‘direct’ if the ‘Boris boss’ spoke to a particular employee or ‘indirect’ if he directed his words at burka wearing employees in general in the workforce.

If he tried to enforce a ban on burka’s in the workplace, whilst permitting other employees to wear symbols of their faith openly, such as Christian crosses, then  again this would be less favorable treatment of the burka wearer and in breach of the Equality Act.

Consistency is key

The key for employers is consistency. If you ban some religious clothing or symbols whilst permitting other religious clothing or symbols, this will be unlawful. Ban them all or none at all.

Investigation

Whether it’s a ‘Boris-type’ boss or any other employee, if there is a breach of a company’s policies on how to behave toward fellow employees, the employer should instigate the disciplinary procedure. Given what he said, Boris’ words breach every company’s code of workplace behavior.

The seminal case of Burchill-V- British Homes Stores 1980 sets out the essentials of a lawful disciplinary procedure. The process must start with a reasonable investigation of the facts of the alleged wrong doing.

The Conservative Party has now started the investigation.

Disciplinary hearing

If sufficient evidence is uncovered that suggests that misconduct may have taken place, a disciplinary hearing should take place.

Before the disciplinary hearing takes place, the employee accused of misconduct should be supplied with all the material that the employer will rely upon at the hearing.

At the hearing the employee should be given an opportunity to explain his version of events.

At the end of the hearing the employer should, having heard all sides, arrive at a conclusion as to whether misconduct took place or not. If the employer decides that misconduct took place, then a sanction that is within the range of reasonable responses to the misconduct should be delivered. This could be dismissal.

Given that the Conservative Party had to be dragged to the point starting of an investigation, it is probably unlikely that dismissal will be a likely sanction – removal of the whip in Boris’s case.

However, for most employees, given the sensitive nature of these matters in the workplace, dismissal is likely to be a lawful response to a finding of this type of misconduct.

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Good employer loses appeal in migrant right to work case

employment law, immigration, right

Immigrant workers need fairness in right to work disputes. Credit: Danny Mann

Foreign workers have a right to appeal if they face dismissal over doubts about their UK residency status, appeal judges ruled.

The Employment Appeal Tribunal made a ruling in an unfair dismissal case brought by Pakistani worker, Fahim Afzal, against his employers, a Dominos Pizza delivery franchise.

Judges ruled that the franchisee, East London Pizza, should have given Mr. Afzal an appeal against being dismissed for not showing that his limited leave to remain had been extended.

Managers sacked him in August 2016 because they feared receiving penalties under the 2006 Immigration, Asylum and Nationality Act for employing a migrant with no right to work. Yet, the appeal court found that their letter of dismissal had offered no appeal process.

Mr. Afzal had applied to the Home Office to extend his stay the day before his visa ran out on 12 August. He copied his application in an email to his boss but for technical reasons the attachment could not be opened.

Good employment practices

Mr. Afzal brought a case to the employment tribunal yet the court found in favour of East London Pizza. The employment judge found that the company had good employment practices, Fahim did not have the right to stay and there was no case for a rethink by the employer.

The main issue for the tribunal judge was that it was reasonable for the employer to believe that after the 12 August, Fahim’s chance to extend his stay had gone.

Yet, the appeal judges ruled that there had been an error of law and Mr. Afzal should have been given the chance to prove he could have remained.

The appeal judges, though, did not reverse any other tribunal findings, including the dismissal. The case will go back to the employment tribunal for a final ruling.

In general, employers can confirm the status of a foreign worker at the Employer Checking Service. An employer has 28 days from the date a worker’s visa or right to work expires to obtain a status notification from the Service.

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New law on using personal data

Privacy, data, employment

Privacy means more work for employers

New legislation will greatly increase the compliance burden on employers when they manage employee personal information.

Failure to comply can result in a maximum fine of 4% of their organisation’s global turnover.

Employers will now have to use clear language and explicitly seek the permission of employees and others about keeping and processing sensitive personal data under the new General Data Protection Regulation (GDPR).

The European Union’s regulation comes into effect in the UK on 25 May and greatly increases the rights employees have over their personal data held by employers. The UK government is updating the current Data Protection Act 1998 and a new act will incorporate the GDPR.

 

Sensitive data

The new regulations will also cover personal information about individuals collected for consumer and commercial purposes as well as covering current and former employers and contractors.

The law identified ‘personal data’ and ‘sensitive personal data’. Sensitive data includes: racial or ethnic origin, political views, religion, philosophical beliefs, trade union membership, information about sex and sex identity, health, and biometric data that identifies an individual. Criminal convictions are left to national jurisdiction.

Explicit consent

The key for data controllers is to obtain specific consent from those whose data employers manage. Then manage the data, exactly in accordance with the permission granted and for no other purpose other than expressly authorised.

An employer, especially a large employer, will likely need to increase administrative resources to follow the new rules. The person authorized to keep data, the ‘data controller’, will have special responsibilities and will need to demonstrate that rules are being adhered to. The data controller will need to ensure that individuals have a right to privacy over their publicly available information.

In terms of recruitment, it may mean more requests to supply copies of all interview notes or scoring sheets along with any other relevant documents. A subject access request will no longer require a £10 fee.

Explicit consent from job candidates will be needed for them to fill in automated and online application forms.

For further information about employment law and sexual discrimination and harassment please contact Sharma Solicitors 0345 430 0145. Sharmasolicitors@sharmasolicitors.com  www.sharmasolicitors.com

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Employer liable for sex pest employee

sex harassment, vicarious liability, employment law

Anti-discrimination procedures could save money

A travelling theatre company was forced to pay over £10,000 after a victim of sex harassment was forced out of her job.

In the case of Haines v Rainbow Theatre Productions, ET/1400362/2017, at Southampton Employment Tribunal, the judge ruled that the company was ‘vicariously liable’ for the sexual harassment and discrimination inflicted upon actress Helen Haines.

The 26-year-old employee put up with demands for sex, lewd comments and abuse from fellow actor, Chay Lewandowski from 30 August until she resigned on 5 November 2016.

After she left, Ms Haines lodged a grievance but abandoned it after the company took a month to respond. Eventually, she took legal action blaming Rainbow Theatre for a breach of Section 13 of the Equality Act 2010 – direct sex discrimination.

The tribunal heard that as well as directly demanding that Ms Haines have sex with him, Chay Lewandowski’s harassment also included calling her a “slut”, and a “c…”. The play’s director, Lee Payne, joined in the abuse by saying “I reckon it’s Helen’s vagina making those noises” and “your tits aren’t as big as the last actress”.

Vicarious liability

Under Section 109(1) of the Equality Act, an employer is vicariously liable for the discriminatory acts of their employees. The aim of the law is to force employers to stamp out discrimination in the workplace they control.

Very often, it is mainly the employer who is in the sights of a victim employee when they litigate. The employee perpetrating the discrimination is simply added for good measure. After all, it is likely that only the employer has the money to pay the award if the victim wins.

No get out of jail card for employer

The employer argued that if discrimination took place, it was nothing to do with them it because they had already taken all reasonable steps to prevent sex discrimination. Employment lawyers call this the ‘statutory defense’. It is available under Section 109(4) Equality Act.

To dodge liability using the statutory defense, the employer must prove that they took all reasonable steps to prevent the discrimination. Reasonable steps include, putting in place clear policies preventing discrimination and then effectively policing those policies. Enforcement of the anti-discrimination polices should be supplemented by training and courses on required conduct at work.

In the Rainbow Theatre case, not only did the Tribunal reject this defense, but the court also heard that the employer’s conduct did not even make to the jail door of the statutory defense.

It is relatively rare for employers to succeed with the statutory defense. To be able to rely upon it requires foresight, forethought and above all, advance expenditure for training. Sterile policies in an employee handbook will keep the jail door firmly locked.

For further information about employment law and sexual discrimination and harassment please contact Sharma Solicitors 0345 430 0145. Sharmasolicitors@sharmasolicitors.com. www.sharmasolicitors.com

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Employers on the hook for their tax cheating workers

employment, law, tax, workers

Bosses must stop tax evasion

A new law calls on employers to do what they can to stop their employees and contractors from evading their tax.

The Criminal Finances Act 2017 (CFA 2017), means that employers commit an offence if they fail to prevent an employee, agent or other person engaging in tax evasion in the UK or abroad.

It is also an offence if people associated with a corporate body knowingly help another organization in criminally facilitating tax evasion.

The law is a new attempt to criminalise taw evasion by targeting freelancers, contractors or consultants who cheat. Section 45 of the law has created two new offences that came into force on 30 September.

The section states that a body corporate or partnership will be guilty of an offence if a person commits a UK tax evasion facilitation offence when acting in the capacity of a person associated with that body.

It goes on to state that such a person commits a UK tax evasion facilitation offence by being knowingly concerned in, or in taking steps with a view to, fraudulent tax evasion by another person and aiding, abetting, counseling or procuring the commission of a UK tax evasion offence.

Employers can benefit by using consultants rather than employees because they do not have to deduct income tax from the worker or pay employer’s national insurance. Nonetheless, it is the contractors who are the main beneficiaries. The law wants consultants to be genuine contractors and not employees masquerading as consultants to evade income tax.

Employers should have procedures

An employer should have procedures that stop their workers from evading tax in order to comply with the new law. Nonetheless, employers’ procedures do not have to prevent any and all tax dodging in order to be reasonable. Furthermore, an employer can be tried summarily or on indictment and can be punished with a fine.

The law treats employees, workers, self-employed contractors and freelancers differently. Employees have the greatest protection under the Employment Rights Act 1996 (ERA) and employers usually deduct their income tax payments through PAYE. Workers are not quite employees but they enjoy some employees’ rights such as the right to paid holidays and the right not to suffer unlawful deductions from wages. Freelances do not come under the ERA. Under normal circumstances, they are treated as if they own their own business and so are responsible for their own tax.

The Government has published guidance on tax evasion: Tackling tax evasion: Government guidance for the corporate offences of failure to prevent the criminal facilitation of tax evasion. It can be found on the gov.uk website.

For further information about employment law please contact Sharma Solicitors 0345 430 0145. Sharmasolicitors@sharmasolicitors.com. www.sharmasolicitors.com

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Employee theft grievance taken to the top

Employment law, theft, sacking

Bosses need to make secure theft accusations

Confusion over employment law led to a top company making an embarrassing public climbdown.

Tesco was forced to withdraw its accusation of theft against a worker after he staged a 21-hour public protest.

The accused worker, security guard, Adama Jammeh, climbed up to the girders in the roof space in Tesco Extra in Reading, in October 2017, after being sacked.

He turned his protest into a public spectacle by posting Facebook videos claiming the company had wrongly accused him of stealing £20,000 of electrical goods.

Bystanders were forced to abandon their shopping and flee the store as police controlled the scene and as the media descended on the incident.

Tesco later did an embarrassing climbdown in a letter admitting that Mr Jammeh may have suffered ‘a significant injustice’ and that ‘no formal proceedings’ against him had begun.

The letter brought the protest to an end but unhappily for Mr. Jammeh, he was arrested by police for disturbing the peace.

Reasonable belief

The incident highlights the need for both employer and employee to behave in a way an employment tribunal would regard as reasonable given the circumstances. A tribunal will allow dismissal for theft of a significant amount of goods, where there is a ‘reasonable belief’ of guilt – section 98 Employment Rights Act 1996. But belief is not enough.

The seminal case of British Home Stores -V- Burchill 1980 states that the employer has to carry out a reasonable investigation before a disciplinary hearing. The employee must receive the information discovered before the disciplinary hearing. At the disciplinary hearing, he should be permitted to have a work colleague or trade union representative, state his case and afterwards have the right to appeal.

A court would also expect that the employer to consider how serious the offence was, the employee’s general performance and ensure employees are treated in a consistent way.

Employees should always have access to a grievance procedure to complain about false accusations of theft, as most will shout their innocence from the rooftops.

For further information about employment law please contact Sharma Solicitors
0345 430 0145. Sharmasolicitors@sharmasolicitors.com. www.sharmasolicitors.com

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Employers can renege on pension benefits says court

Pension dispute

Caption: Pension scheme change

Appeal judges have ruled that a top company can slash its pension costs despite objections from employees.

The Court of Appeal, in IBM UK -V- Dalgleish, backed the company’s plea that the High Court should not have found it breached its duties as an employer.

 

In 2014, the High Court decision turned on employment law that regards mutual trust and confidence between employee and employer as an implied part of an employee’s contract.

Judges had agreed with employees that when IBM changed its pension scheme they broke a ‘reasonable expectation’ – based on previous statements that they would continue with their initial scheme. Judges also concluded that the company’s financial situation did not force IBM to make the change.

IBM made changes to ‘discretionary’ parts of its pension scheme so that its costs in the future could be reduced. Managers wanted to exclude future salary increases from the pensionable pay used to work out its defined benefits. It also terminated future increases to the defined benefits upon retirement as well as enhanced early retirement.

Reason over trust

But appeal judges ruled that employees were being too emotional and the High Court put too much emphasis on them being disappointed because their expectations were not met.

Appeal judges declared that a rational approach was required and looked at whether other issues should have been taken into account at the High Court. The bottom line was that IBM had acted rationally when they made their decision and that meant that there was no breach of mutual trust and confidence.

However, whilst the employer was permitted to change the discretionary benefits available under the pension scheme, they were locked into the contractual commitments they made under the scheme. Discretionary benefits gave the employer some leeway but the contractual benefits were set in stone.

The lesson for the employer was: if you act on your discretionary powers you must act reasonably. In this case, the Appeal Court found IBM acted with reason and justification.

The High Court decision was regarded as a landmark in pensions cases but the employees could still go to the Supreme Court.

For further information about employment law please contact Sharma Solicitors 0345 430 0145. Sharmasolicitors@sharmasolicitors.com. www.sharmasolicitors.com

Photo credit: Howard Lake

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Judges outlaw paying fees for employment cases

Employment Tribunal, fees

Trade unionists hail win against fees

 

 

 

 

 

 

 

Requiring women to pay a fee for taking a discrimination case to an employment tribunal breaches the Equality Act, the Supreme Court has ruled.

This was one reason the Supreme Court upheld an appeal by the union, Unison, against government policy that charged workers fees to lodge a claim at an employment tribunal.

The result of the case is that government has immediately dropped its charges but will further consider the issue at a later date.

Supreme Court judges in July 2017 heard that women were indirectly discriminated against because they were more likely than others to take a particular type of case that incurred higher fees.

The Court said:

“The Fees Order is indirectly discriminatory under the Equality Act 2010 because the higher fees for type B claims put women at a particular disadvantage because a higher proportion of women bring type B than bring type A claims.”

Pricing workers out of justice

The Court also ruled the government’s fees breached UK and EU law because they priced workers out of obtaining justice.

As the Supreme Court said:

“Fees must be affordable not in a theoretical sense, but in the sense that they can reasonably be afforded. Where households on low to middle incomes can only afford fees by forgoing an acceptable standard of living, the fees cannot be regarded as affordable.”

The Supreme Court also stated that all fees paid from 2013 will have to be refunded by the Lord Chancellor’s Department and the government has agreed to do this.

From 2013, the government introduced fees from £400 to £1,200 for people lodging legal claims in order to have their cases heard at an employment tribunal. There were other fees of up to £600 that might have to be paid depending on the case. To appeal an Employment Tribunal decision cost £1,600.

The Court heard that the number of claims fell by just under 70% because of the fees. Judges were also told that 86,130 cases were brought to a tribunal in 2015/16, and £11.6m was paid in tribunal fees in 2016/17.

The Supreme Court ruling reverses the outcome of the High Court case in August 2015 that Unison lost. The High Court concluded that the early conciliation process and fees could be responsible for the decrease in the number of cases.

For further advice about employment disputes please contact Sharma Solicitors 0345 430 0145. Sharmasolicitors@sharmasolicitors.com. www.sharmasolicitors.com

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Sex discrimination roles reversed

sex discrimination

Did a quip at work go too far?

A woman’s ‘blow job’ quip to a male employee was sexual discrimination, ruled an Employment Tribunal. This case is unusual in that the roles were reversed and it was a man who complained of the sex discrimination.

In Elworthy v Your-Move.Co.UK Ltd May 2017, the Employment Tribunal agreed that the remark by manager Ms Sarah Thompson made sales consultant, P Elworthy, feel uncomfortable. The Employment Tribunal upheld his direct discrimination claim but found that the remark did not meet the bar for harassment.

The Employment Tribunal heard that Sarah Thompson made the remark after a boozy works lunch in December 2013. She told Mr. Elworthy that if he achieved £180,000 in sales, she would give him a blow job. Another employee, Mr. Barrett, claimed that Ms Thompson said that he was excluded from this ‘benefit’ because he was married. Mr. Barrett claimed he took the remark as a joke.

The court also heard that four or five colleagues carried on drinking after the lunch. They were talking about sales targets and their effect on their bonuses. Sarah Thompson denied making the remark and said she regarded him as a friend. Mr. Elworthy said he did not complain at the time because he feared for his job.

Less favourable treatment

However, he did complain about the quip when he had a second disciplinary hearing in September 2016, after which he handed in his resignation letter. The tribunal accepted that Mr. Elworthy was a high performing mortgage adviser. He was a pleasant, articulate and intelligent man.

Led by Employment Judge Elliott, the tribunal stated:

“We have found above that Ms Thompson’s comment left the claimant feeling “a bit uncomfortable” and “not great”. It did not meet the bar for harassment but we find that the effect on him was nevertheless detrimental. It was a highly sexualised comment and we have no hesitation in finding that the comment was made because of the claimant’s gender. We find that Ms Thompson would not have made an equivalent comment to a woman. We therefore find that the comment was less favourable treatment because of sex and the claim for direct sex discrimination succeeds.”

Mr. Elworthy’s claim came under direct sex discrimination as defined in section 13 of the Equality Act 2010. The Employment Tribunal did not find in his favour in regard to constructive dismissal  and other employment law issues.

For further advice about the Equality Act and other employment issues please contact Sharma Solicitors 0345 430 0145, Sharmasolicitors@sharmasolicitors.com    www.sharmasolicitors.com

 

 

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Dad scores victory for equal paternity pay

Father paternity employment law equality

Dad wanted equality with mums

A father won his discrimination claim demanding equal pay for paternity leave with mothers who took maternity leave.

In the employment tribunal, in the case of Mr Ali v Capita Customer Management Limited 2017, the judge ruled the father was entitled to the same rate of enhanced paternity pay as mothers on enhanced maternity pay.

Mr Ali alleged direct sex discrimination because his employer treated him less favourably than female employees. Capita gave mothers enhanced pay for 14 weeks of maternity leave but fathers received only statutory pay. Mr Ali wanted to take care of his new born baby, when his wife became unwell.

Since 2003, under section 80A-E, now incorporated into the Employment Rights Act 1996, fathers of new born babies are entitled to take paternity leave of two weeks. Evidence suggests there has been a mixed take up of this benefit, perhaps because the statutory entitlement to pay is only statutory paternity pay – equal to statutory maternity pay.

Additional benefits, additional costs

This case centred on the additional benefit provided to women after child birth, namely, enhanced company maternity pay after the two weeks. Here the employer also offered leave to the partner of the woman who had given birth but only paid statutory paternity pay and not enhanced company pay. Mr Ali claimed this was discrimination, as he needed to care for his ill wife and new baby.

He argued that there was an unfair assumption that a man caring for his baby was not entitled to the same pay as a woman. He said this took away choice that he and his wife could make about who looked after the baby.

Paying for paternity

The tribunal said that the employer’s policies meant that men and women who took leave to care for their new born babies were not treated equally in relation to pay. But, the tribunal also held that less favourable treatment did not apply to the first two weeks of maternity leave that was compulsory for mothers. Indeed, Mr Ali received his full pay during the first two weeks of his paternity leave. His complaint was about the rest of the paternity leave.

The lesson for employers is that they should review their maternity and paternity leave policies so that employees receive the same benefits.

For further information about maternity and paternity leave please contact Sharma Solicitors 0345 430 0145. Sharmasolicitors@sharmasolicitors.com. www.sharmasolicitors.com

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