World Cup 2018 – How to support your team whilst staying on-side

With the largest sporting event in the world less than a month away, now seems an apt time to address how to avoid falling foul of your employer’s polices during the World Cup.

On the off chance you haven’t already seen them, the match times have already been released this year and the majority of them fall within normal working hours - starting at 13:00, 15:00, 16:00 and 19:00.  This is obviously not ideal for football fans, but gives the possibility of watching the match in working hours. This can be seen as both a blessing and a curse, and I’ll discuss some of the reasons why below:

1.     Do I have a right to watch my country’s team play?

The short answer is no (unless your contract states otherwise – highly unlikely!). Although some employers will let their employees watch certain games you do not have an express right do to so. However, if, for instance, your employer allows England fans the afternoon off to watch the match but doesn’t give the same offer to supporters of other countries when their teams are playing this could potentially be seen as race discrimination under the Equality Act.  

2.     Can I be disciplined for my behaviour on a staff social?

It’s a fact that a lot of staff social events involve alcohol and sometimes there can be a tendency towards inappropriate behaviour when drinking is involved.  I would suggest this is especially true during the World Cup given the excitement of the event and the high emotions (usually disappointment, for England fans) involved. This gives rise to the question of whether or not your employer can sanction you for your behaviour during a staff social? The answer to this question is yes, they can. If your employer organises an outing or event their normal rules on appropriate behaviour will apply to staff who attend it. There are many examples of staff members acting inappropriately at work events and facing disciplinary proceedings because of this, so it is worth bearing in mind!

3.     Can I show support for my country’s team at work?

The World Cup is one of the largest sporting events in the world, bringing together 64 countries who fight for a spot in the final 32. Many different nations with their own customs and traditions, it is a great chance for employees to share their culture with one another. However, due to the competitive nature of the event some supporters can tend to get a little carried away. It goes without saying that it is a good idea to be respectful about the other countries in the competition. Negative comments and stereotypes are often found to be discriminatory in law, whether they are intended to be or not, and can lead to disciplinary action or even dismissal. It is also worth mentioning that some employers have a “neutrality policy” which may prohibit employees displaying flags and various other national symbols in the office; if in doubt, ask your employer before doing so.

James Battle - Legal Assistant

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Mental Health at Work

Sadly, I deal with many workplace disability discrimination cases and a high proportion of those involve mental health issues. In my experience, employers find it much more difficult to understand and manage mental health issues in the workplace, in contrast to other disabilities.  

I therefore welcomed Theresa May’s announcement in January this year that an independent review was to be undertaken into how employers can better support all individuals in employment with mental ill health or poor well being to remain in and thrive through work. Last month, the government’s report was released.

As you may have seen in the headlines, the review uncovered some staggering facts and figures:

• 300,000 people with a long term mental health problem lose their jobs each year.
• 15% of people at work have symptoms of an existing mental health problem.
• Poor mental health of employees is costing employers between £33 billion and £42 billion a year, stemming from sick leave, staff turnover and individuals being less productive in their roles (“presenteeism”).
• The cost of poor mental health to the government is between £24 billion and £27 billion, resulting from costs of providing benefits, falls in tax revenue and costs to the NHS.
• And the cost to the economy as a whole from lost output?...between £74 billion and £99 billion a year!   

The “inescapable conclusion” was that it was massively in the interests of both employers and the government to prioritise and invest far more in improving mental health. I wholeheartedly agree with that conclusion.

But what can employers do about it?

The report proposes “mental health core standards”, a framework for a set of actions which could be implemented across all workplaces quickly and at little or no cost. It recommends the following:

• Implement and communicate mental health at work plans;
• develop mental health awareness among employees;
• encourage open conversations about mental health and the support available;
• provide good working conditions and a healthy work-life balance;
• promote effective people management through line managers and supervisors;
• routinely monitor employee mental health and wellbeing.  

Personally, I think the recommendations are a very good start.

So many of my cases result from a serious lack of appreciation and understanding of mental health issues and how to balance them against the employer’s need to achieve results, deal with absenteeism and address perceived performance issues. I therefore believe that implementation of the framework would give employers a very different perspective on these types of cases and, if well managed and well informed, I expect many employers will realise just how much those with mental health issues can thrive at work, as much as anyone else.   

Daniel Kindell  - Solicitor

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Supreme Court rules tribunal fees are unlawful

On 26 July 2017, one of the most important judgments in the past 50 years of employment law was handed down. Yes, in an age of gloomy economic forecasts and disgruntlement in the workplace from squeezed workers, news reached us last Wednesday that restored our faith in the justice system.

The Supreme Court in R (on the application of Unison) v Lord Chancellor declared that employment tribunal and EAT fees are unlawful under both domestic and EU law. The Court’s view is that the Fees Order that introduced the fees was unlawful from the outset and must be quashed because it has the effect of preventing access to the tribunal system. Well, this is what critics of the fees have been saying since their introduction and they no doubt did a double take after the judgement. Fake news? Nope, a sensible ruling on the backdrop of research that revealed a 70% drop in the number of cases brought in the employment tribunal, since the fees were introduced.

It was Unison who waged a four year legal battle to get the fees scrapped, arguing that they prevented workers from seeking justice and were discriminatory towards women. To those who say trade unions are for bygone eras, think again!

The Supreme Court unanimously decided against the Government and found it was acting unconstitutionally when it introduced the fees. The immediate consequence of this decision is that the Fees Order is quashed meaning that tribunal and EAT fees cease to be payable and fees paid in the past must be reimbursed.

The fees were introduced under the Employment Tribunals and Employment Appeal Tribunal Fees Order on 29 July 2013, by the then Lord Chancellor Chris Grayling, in a bid to reduce costs and free up clogged courts. Under this Order, employment tribunal claimants and EAT appellants were liable to pay a fee of up to £1200 in order to bring and pursue claims and appeals, unless they qualified for fee remission on the basis of their disposable capital and gross monthly income.

In the main judgment, the Supreme Court noted that there is a difference between the level of the fees in the tribunal and those fees in the small claims court, where it is much cheaper to bring a small value claim. In addition Baroness Hale concluded that it was indirectly discriminatory to charge higher fees for type “B” claims (which include discrimination claims) than type “A” claims.

So what will happen next?

Firstly, this is a fantastic result for Claimants as it means individuals who have been treated badly by their law-breaking bosses can now take action without worrying about whether they can afford to finance a claim at the Employment Tribunal. However, it is unlikely the fees regime will disappear for good. It is possible the Government will bring in reduced fees under a new regime.

In a further victory for those who had to pay fees since 2013 the Supreme Court has confirmed that they will need to be refunded (approx £32 million). The immediate impact can already be seen as it is understood that employment tribunals are now refusing to take fee payments when hard copies of ET1 claim forms are presented in person.

Unfortunately, we will never know exactly how many people missed out or were put off taking action against their employers for unlawful actions in the workplace. However, it seems that the principles of fair access to justice have prevailed and this case is a significant step in the right direction towards balancing employer-employee rights in the workplace.

Kamran Sadiq - Solicitor

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Future world of work and rights of workers inquiry

The Business, Energy and Industrial Strategy Committee has launched an inquiry into the ‘future world of work’ and in particular, the 'gig economy' – agency workers, zero-hours work, the use of ‘self-employment’, worker status, low pay and poor working conditions. They refer to the recent Sports Direct scandal and also other organisations with similar poor working conditions.

This is good news. Hopefully, whatever its outcome, turning the lamp onto these types of employers can bring some heat on these organisations with more public attention drawn to the growth of the ‘precariat’ – individuals who work in poor conditions with weak terms and conditions, be it low pay, the absence of paid holiday, sick pay and the like.

My view is that the rise of the ‘precariat’ is nothing new – this country has a history of shoddy employers treating working people poorly and of governments legislating to either counter this, with increased protections (the introduction of redundancy pay in the 1960s, unfair dismissal in the 1970s and the recent(ish) minimum wage in the 1990s) or to aid it, by reducing employment rights (the scrapping of wages councils, the introduction of ET fees of up to £1,200, limits on compensation – all within the last 3-4 years). Since 2010, the move has been to reduce employment protection and to restrict trade unions. My view is that this has encouraged shoddy employers and weakened the position of employees.

Evidence suggests that as a result of the reduction in protections, the equal pay gap is now growing and certain sectors of the workforce, such as disabled people and pregnant women or women on maternity leave, are suffering more, not less, discrimination. I also believe that it has encouraged the growth of the ‘gig economy’ – individuals working in sham ‘self-employment’ situations or in weak zero-hours roles with little control or say about the number of hours they work. This causes illness, harms the economy and damages lives, not least children of adults who work for low pay, on horrendous hours and with uncertain futures.

I’m pleased that the Committee have this on the agenda. Let’s hope for all concerned, not least our children and grand-children, that whatever recommendations are made, they are followed by those in power and a more secure workforce results with more (not less) permanent, well-paid jobs. After all, apart from shoddy employers and obscenely profitable multinationals, how do we as a nation benefit from the rise of the precariat?

The Committee is seeking comments – please do so at:

http://www.parliament.uk/business/committees/committees-a-z/commons-select/business-energy-industrial-strategy/news-parliament-2015/the-future-world-of-work-and-rights-of-workers-launch-16-17

David Sorensen - Partner

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Ban on Islamic Headscarves – Indirect or Direct Discrimination?

This issue has come to light in the media recently, with conflicting decisions from two Advocate Generals causing some controversy.

In Bougnaoui and another v Micropole SA (Case C-188/15) Advocate General Sharpston considered whether a French employer's ban on the wearing of Muslim headscarves by staff amounted to direct and/or indirect discrimination under the Equal Treatment Framework Directive (2000/78/EC). AG Sharpston’s opinion was in stark contrast to the opinion given recently by Advocate General Kokott in Achbita and another v G4S Secure Solutions NV (Case C-157/15), involving very similar facts.

The facts in Achbita involved a Muslim employee who began to wear a headscarf three years into her employment at work despite a company rule which prohibited the wearing of any visible signs of religious beliefs. She was dismissed and she appealed through the courts to the Belgian Constitutional Court which then posed the question to the European Court of Justice (ECJ).

AG Kokott expressed the opinion that the prohibition of wearing a headscarf stemmed from a general neutrality policy, and so did not amount to direct discrimination; at most, it could amount to indirect discrimination. Even then, it might be justified as an occupational requirement, with consideration to be given to the size of the symbol, the nature and context of the employee's activity and the national identity of the Member State concerned.

In Bougnaoui, the Claimant was employed by Micropole SA as a design engineer. She was a practising Muslim and wore an Islamic headscarf at work; her role involved her meeting with clients face to face. A client complained to Ms Bougnaoui’s employer and requested that there should be “no veil next time”. She was asked not to wear her headscarf when visiting clients and when she refused to do so, she was dismissed.

The French Labour Tribunal dismissed Ms Bougnaoui's claim for discrimination based on her religious beliefs and held that the dismissal was well founded on the basis of a "genuine and serious reason".

The case was referred to the ECJ and questions were asked specifically whether, on the assumption that Ms Bougnaoui's treatment was discriminatory, it could be justified as being based on a “genuine occupational requirement” under Article 4(1).

Advocate General Sharpston opined that Ms Bougnaoui's dismissal for wearing a headscarf when in meetings with customers of the employer's business constituted unlawful direct discrimination on the grounds of religion or belief. She further stated that it was clear that she had been treated less favourably on the ground of her religion than a comparator would have been treated in a similar situation.

AG Sharpston also sought to widen the concept of direct discrimination to include, not only less favourable treatment because of a person's religion, but less favourable treatment because of a person's manifestation of their religion – this is significant because there is no general defence of objective justification to a claim of direct religious discrimination.

So, will the decision affect UK law?

If AG Sharpston’s opinion is upheld then it may potentially add a direct discrimination claim. The Judgment in the case of Eweida v British Airways plc will still be considered good law in the UK. The current assumption in the UK is that dress codes could give rise to an indirect discrimination claim, rather than direct, as the requirement to dress in a particular way is applied to everyone.

Given the two very conflicting opinions in these two cases, the decisions of the ECJ will be eagerly anticipated.

Kiran Chana - Trainee Solicitor

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The EU debate - discrimination

In this blog I want to look at the legal effect of EU membership from the perspective of discrimination law.

I begin by quoting (again – I hope he does not mind) from the advice of Michael Ford QC to the TUC* on this subject:

“It is difficult to overstate the significance of EU law in protecting against sex discrimination.“

I am (again) deliberately trying to avoid a political take on this stuff. I think Ford’s point would be accepted without significant qualification by perhaps 80-90% of employment lawyers.

Why is that? Here are a few concrete examples of legal changes that arose directly out of EU legislation/caselaw:

• Protection from discrimination on the grounds of sexual orientation. Until 2003 this was not a protected characteristic (like sex, race and disability). The Regulations that made it so came about in consequence of the EU Framework Directive.

• Pregnancy protection: the European courts decided that it was not open to an employer to argue that it could justify discrimination against a pregnant woman by saying “we would have treated a man off with sickness the same way” – they ruled that pregnancy is (rather obviously) a female-specific condition – so that no comparison was necessary. Without that ruling protection from pregnancy discrimination would be hugely undermined.

• In the Equal Pay sphere the ECJ extended the concept of pay to pensions – so that part time workers were successfully able to claim equality of terms on the pensions front (and since most part timers are women…

• The ECJ has opened the way to claims of “associative discrimination” e.g. you must not discriminate against A, on the basis of A’s child’s disability (even if A is not disabled).

• Compensation: the European requirement for proper compensation for discrimination made it so that the UK now allows unlimited compensation for victims of discrimination (it is plain that imposing a cap is on the agenda in the event of a Leave vote).

None of this is controversial stuff. Links to the cases and Regulations that support these conclusions are all in the advice to which I link below.

Of course, none of this means you must vote any particular way. My aim is simply to shed some factual light on just a small part of a subject that seems littered at present with half-truths and hyperbole.

* https://www.tuc.org.uk/sites/default/files/Brexit%20Legal%20Opinion.pdf

Paul Scholey - Senior Partner

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Fashion Victim

I was interested to receive an e-mail from ACAS advising that new guidance had been published on dress codes, tattoos and piercings in the workplace.  It made me reflect on my own attire for our charity dress down days at the end of the month – how much could I really get away with? Flip-flops and shorts in summer? Woolly hat indoors in the winter? Could I now get that tattoo I wanted when I was a teenager? 

So I read the guidance hoping there’d be some clear instructions to help me tailor my wardrobe to suit - but I was disappointed.

There are some key principles employers must adhere to but no detailed rules. It is for the employer to set the standards that will apply. 

ACAS says employers must - 

• avoid unlawful discrimination in relation to any dress code,
• consider health and safety,
• apply the dress codes to men and women equally and
• make reasonable adjustments for disabled people when dress codes are in place.

These are all very sensible suggestions. But I still wasn’t sure what I could and couldn’t wear.

A number of Tribunal cases have given more specific examples. In Smith –v- Safeway Plc (1996) a male employee of Safeway on the deli counter was dismissed because the length of his pony tail fell below his deli hat. This contravened his employer’s rule, which required employees to dress in a smart and conventional way. Mr Smith thought it was unfair and argued sex discrimination but he failed. The Court of Appeal decided that since the dress code was applied equally to persons of both sexes (i.e. both sexes were required to dress in a conventional way) it was not discriminatory.

So employers might be allowed to apply different standards to female and male employees if the dress code enforces a common principle.  However, it isn’t always easy to get the balance right.  In DWP v Thompson the Claimant received a warning for refusing to wear a collar and tie, when female employees were not required to wear them. The Tribunal confirmed the proper approach was whether the level of smartness required by the employer could only be achieved by requiring men to wear a collar and tie. If it could be achieved by other means the inflexibility might amount to sex discrimination.

Azmi –v- Kirklees Metropolitan Council reminds us of the potential for religious discrimination issues to arise. In this case a Muslim woman was not allowed to wear a veil at work when teaching (but was allowed to wear it at other times).  When she refused to comply with the request, the school suspended her and she pursued claims of discrimination on grounds of her religion and belief. Ms Azmi’s claims failed - the rights of employees to manifest their religion at work are subject to their being able to perform the role they are employed to carry out. The employer in this case had evidence of a detrimental impact on teaching and their request was proportionate.  

ACAS emphasises that any restriction on clothing or jewellery that manifests religious faith must be based on a legitimate business or safety requirement. Employees might be allowed to demonstrate their religious faith through their dress by wearing an unobtrusive cross symbol to denote religious faith (clear reference to Eweida –v- British Airways Plc). However, where health and safety is concerned, it might lead to a different outcome (for example in the Chaplin case where a risk of infection and patients grabbing a necklace outweighed the right of this nurse to manifest her religion by wearing a necklace with a cross symbol). Tackling these thorny issues of religious and sex discrimination is not really made any easier by the ACAS guidance.  

Some cases might be straightforward. One can imagine how necklaces or dangly body piercings in some industries (e.g. manufacturing) might not be allowed. Nobody wants to find an earring in their pasta salad and no worker would want to risk the danger of their necklace getting caught in a conveyor belt. Wearing flip flops on a construction site is just silly. What the ACAS guidance does at least achieve is prompting employers to think about it. Employees should know why the employer believes it is dangerous or unhygienic or unprofessional to wear certain jewellery or items of clothing and this can be written in a policy. ACAS even suggests employees get involved in helping the employer create such policies. But once the employer thinks about it, will it be put off by the complications? Once it is in writing, etched like a tattoo permanently in their policy booklet, the employer might lose the element of discretion which can create a more relaxed and pleasant working environment.  

But there is no doubt that an employer’s image is important – and when it comes to tattoos, it’s all about image. Footballers, film stars, music stars – everyone seems to have tattoos. Apparently one in five British people are thought to have tattoos and they’re most popular in 30 to 39 year olds. ACAS guidance suggests employers need a ‘sound business reason’ for asking that tattoos be covered up. Given their popularity and prominence are they really a problem? Do they really give the impression a person is less professional or less competent than the next or does it show artistic flare and creativity? It’s tricky and the guidance from ACAS is brief. Ultimately it is for the employer to decide on its tattoo policy and I expect it would in most cases be difficult for an employee to take action if the same policy is applied to men and women.

Dress codes aren’t easy to get right – they need to be tailored to suit the business. But I think I’ll be happy to leave my shorts and flip flops for the beach, my woolly hat for winter walks and tattoos for the celebs. 

Daniel Kindell - Associate Solicitor

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