Do not force pregnant women to work at a desk: Employment Tribunal ruling
A policewoman was stripped of her front-line roles and given desk-bound duties because of her pregnancy and has since won a sex discrimination case against her employer. Thepolice officer was reportedly considered to be fit to continue working, according to a risk assessment carried out by her boss on the day of finding out that she was pregnant.
She was content to make some adjustments to her role including wearing plain clothes and restricting the number of night shift to “assist with tiredness”, though she made it explicitly clear to her employer that she wanted to stay on front-line duties – an employment tribunal heard.
However, her employer went against her wishes and forced her into an office role as they thought it was “safe and suitable for a pregnant woman”. Employers are required to undertake a risk assessment when women are pregnant, in conjunction with the woman, to determine any perceived risk and to establish if (and what) any reasonable adjustments are required but they cannot force job changes on a woman simply because she is “perceived” to be at risk.
She told the employment tribunal that shortly after she was signed off work with depression and anxiety, all of which she attributed to her forced role change. The employment tribunal ruled that she had been discriminated against both due to her sex and pregnancy. An award hearing is being held to determine the value of the award for the employee.
Award of more than £16,000 at Tribunal after only five days’ employment
A London tribunal has awarded more than £16,000 to a trainee emergency call operator after it ruled that he had been racially discriminated against by his former employer during a drug investigation.
The employee was suspended without pay just five days into his employment after his employer accused him of consuming and distributing illegal drugs to his colleagues. He had in fact been using off-the-shelf caffeine supplements.
The tribunal ruled that the subsequent investigation did not properly identify what drugs or substances were consumed or by whom, or even ascertain the legality of the drugs in question.
The ruling said that the employee, who is black, was subject to “suspension, investigation and summoned to an unjustifiable disciplinary hearing” in circumstances under which no white comparator would have faced the same.
The employer told the tribunal it had followed its disciplinary policies and procedures by undertaking an investigation but the tribunal found that the investigation had actually determined that the employee had not consumed or distributed an illegal substance but had been taking a caffeine supplementand that there was no attempt to ascertain the legality of this “drug”.
The judge commented that, “The investigation did not properly identify what drugs or substances were consumed and by whom. The investigation did not clarify who else was given such drugs or substances. Astonishingly the investigation did not ascertain the legality of such drugs or substances,” he said. “The conclusions of the investigation were wholly unsustainable. This was a deeply flawed investigation at every level.”
The tribunal awarded the £16,202.59 compensation for injury to feeling, loss of earnings and an additional ACAS uplift – and this employee was five days into his employment at the point of the allegation.
This case demonstrates that many claims for unfair dismissal and discrimination succeed because of flaws in the investigation process.
IR35 consultation for sub-contractors
The Government has issued a consultation paper concerning a proposal to introduce a requirement for businesses to take responsibility for assessing the employment status of contractors they engage.
To date, the IR35 tax rules have left it up to individuals working as sub-contractors to determine their own tax statusand account to HMRC for any tax and national insurance contributions due.
However, under the new system, it will be for the engaging business to make the determination and to make the tax and national insurance contributions. The Government has been keen to emphasise that this is not a new tax and that the new rules will not apply to off-payroll workers providing their services to small private sector clients after April 2020.
Much of the consultation focuses on the practical implementation of the arrangements to ensure compliance, but also looks at the key issue of status determination. One of the key proposals under the consultation is to require businesses to provide reasons for their status determination to someone regarded as a sub-contractor. It is intended that the final decision on status determination will remain with the engaging business.
Employment status acknowledges the current issue of managing tax and employment law but no firm proposals have yet been put forward by the Government to resolve it.
With a year to go until the new rules are introduced in the private sector, now is the time for businesses to consider the potential impact. It is important to undertake an audit andidentify relevant individuals and their status. HMRC has created a tool to assist with this process, Check for Employment Status (CREST) – although in some instances this tool is not able to provide a definitive answer.
Few businesses invest in CPD for their staff
A quarter of UK employees invest no time in learning new skills or continuous personal development to enhance their professional life, according to new research.
The study looked into how many UK businesses are offering workers dedicated time to work on upskilling, training and research and development, and how much time UK workers are investing in further education and new skills. The results found that nearly a third of workplaces don’t offer employees any opportunity to learn new skills or invest time in development and that almost one in ten workers last invested time in learning new skills for the workplace five years ago.
When asked how much time per week companies allow workers to invest in training and research and development, over a third said less than two hours a week, with just 3% of employees allowing workers to invest seven hours a week – the equivalent of one average working day.
Lack of budget was named the biggest barrier for workplaces.
Positive discrimination in recruitment? Think again!
An Employment Tribunal has ruled that Cheshire Police’s recruitment process discriminated against a white heterosexual male candidate who was rejected after positive action was applied to a pool of 127 applicants who passed the interview stage. The Tribunal heard that the applicant was easily in the top quartile of applicants and that he would otherwise have been a very strong and able candidate.
The Police Chief wanted to improve the diversity profile of her workforce and insisted that candidates with ethnic backgrounds were treated more positively than the white candidate.
Importantly the tribunal ruled that employers should only apply positive action (s.159 of the Equality Act 2010) as a “tie-breaker” between candidates of “equal merit” at the decision stage of the recruitment process and not to either actively promote a minority candidate over another.
This is a step change in recruitment and may result in many public sector bodies having to rethink their positive discrimination policies in recruitment!
Dependency Leave – what are the rules?
Many businesses are unsure how to deal with unplanned employee absence – particularly those which are unavoidable, such as in situations where an employee wishes to care for a dependant.
There is a statutory right to time off for dependants. However, the entitlement is to a “reasonable” amount of time off to deal with an emergency situation and make longer term arrangements.
In these circumstances, it is important to establish if the situation amounts to an “emergency”. This may include caring for a child when they fall suddenly ill or where there has been an unexpected interruption to child care arrangements. It will not include a planned appointment with a dependant.
The employer has a responsibility to ascertain how long the employee intends to be away from work.
There is no statutory requirement to pay the employee for the time off.
If the time off requested is not reasonable and or is not an emergency situation some other form of leave could be appropriate, such as time off in lieu, or annual leave.
Be careful that dress code does not discriminate
Following employers in New York being legally prevented from racially discriminating against employees due to hairstyles, UK employers may be questioning whether “hair discrimination” might be inadvertently occuring under their workplace dress codes!
The New York City Commission on Human Rights has released legally enforceable guidance prohibiting employersfrom discriminating against individuals on the basis ofhairstyles that are associated with African Americans including braids, Afros, cornrows and twists.
In the UK The Equality Act 2010 provides job applicants and employees with protection against a number of types of discrimination where this is related to certain protected characteristics. The list of protected characteristics includes “race” which has an extended definition covering colour, nationality and ethnic or national origin.
Workplace dress codes have recently come under fire for containing discriminatory aspects on the grounds of sex, most notably the debate of whether requiring females to wear high heels to reach the standard of “professional appearance” placed female employees at a greater disadvantage than male employees.
While dress codes are an important business tool to allow employers to convey a certain image or showcase their brand to customers, they have the potential of creating an adverse impact on certain groups of individuals, such as females, males or those of a certain race or religion. It is lawful for a dress code to contain standards for hair where these apply to all employees; for example, a requirement for hairstyles to be “professional” or “neat”.
As these requirements will apply across the workforce, there is little risk of an employee being able to prove that they were being treated less favourably than another. However if this includes a requirement for male employees to have short, tidy hair then this requirement is likely to fall foul of indirect discrimination laws where a workplace rule applies equally to all members of staff but places those with certain characteristics at a substantial disadvantage. The requirement for males to have short, tidy hair to achieve the professional standard raises the following discrimination concerns:
Rather than placing any strict requirements on length or style, employers can monitor appearance by including the equivalent standard of “professionalism” to apply to hairstyles, and consider using an additional prohibition on extreme hairstyles, eg mohawks or unnatural hair colours, as these are not connected to any protected characteristics including gender, religion or race. It will then be for managers to effectively implement this policy and speak to employees, on a one-to-one basis, when it is deemed that they are failing to meet the appearance standard set out within the dress code.
Lone workers can have their breaks spread over the shift and not in one continuous period
A Network Rail lone worker who claimed that his employer had failed to provide him with the rest breaks to which he was entitled has had his claim dismissed by the Court of Appeal.
The employee provided relief cover for absent colleagues at a group of signal boxes and complained about relation rest breaks under the Working Time Regulations (WTR) 1998.
He complained that regulation 12 stated that workers are entitled to a rest break of 20 minutes after six hours’ work. Typically, the rest break should be an uninterrupted period of not less than 20 minutes, and the worker is entitled to spend it away from the workstation.
All but one of the five signal boxes were manned by a single person, which meant that when the employee was working alone, he couldn’t take a single 20-minute uninterrupted break.
Network Rail carried out a full assessment of the lone working practices and concluded that the employee should ensure that his breaks were “taken between periods of operational demand, where there are opportunities for ‘naturally occurring breaks’”.
The Employment Tribunal ruled that the employee was able to take 20 minutes’ break over the course of a shift and that it was not practicable for him to be able to take one break of 20 minutes due to the nature of his duties.
Crawford appealed the decision at an employment appeal tribunal (EAT), arguing that “an equivalent period of compensatory rest” must comprise one period lasting at least 20 minutes.
The Appeal Court then ruled that the employee was “always, in effect, on call” during the daytime shifts in the week. This would prevent him from taking a continuous 20-minute rest break and that there was no reason in principle why a break had to be for an uninterrupted period of 20 minutes. This case has important implications for employers who have lone workers.
Scottish women falling behind in the pay stakes
Female Scottish taxpayers earn an average around £9,000 less a year than the average male, new figures have revealed.
The statics were published by Her Majesty’s Revenue and Customs and shows that female taxpayers have an average pre-tax income of £25,391, compared with £34,828 for men –27% less. The gap is wider at the highest end of the earnings bracket – showing that 8,000 men in Scotland have an annual income of over £200,000 a year, but only 1,000 women.
The “gender income gap” has been shrinking in recent years. When the same data was published for 2015/16, the average male taxpayer had an income of £35,208 compared with £25,259 for the average female – a difference of £9,949.