Sexual Harassment at Work – How to Start Fixing the Problem

Last year, a BBC survey revealed that half of British women and a fifth of men have been sexually harassed at work. And with momentum generated by the #MeToo campaign, sexual harassment has been in the spotlight in recent months.

The Equalities and Human Rights Commission has now published its new report, on 27 March 2018. 

The report shares evidence gathered from around 1,000 individuals and employers between December 2017 and February 2018 and shows that some employers simply aren’t protecting their employees from sexual harassment at work. 

The report looks at how sexual harassment is dealt with by employers and recommends several improvements.

The report found a lack of consistent, effective action on the part of too many employers and the EHRC is now calling on the UK Government to show clear leadership and implement their recommendations to eliminate sexual harassment in every British workplace.

So how do they propose that sexual harassment at work is eliminated? They suggest that through transforming workplace cultures, promoting transparency and strengthening legal protections, sexual harassment can be eliminated.  

The key recommendations made by the EHRC for the government to consider are as follows:

• Introduce a statutory code of practice on sexual harassment and harassment at work, with employment tribunals to have the power to apply an uplift to compensation in harassment claims of up to 25% for a breach of any mandatory element of this new code;

• Employers should all have and should publish their sexual harassment policy in an easily accessible part of their external website;

• Legislation should be introduced making any contractual clause which prevents disclosure of future acts of discrimination, harassment or victimisation void;

• Safeguards should be implemented to restrict the use of confidentiality clauses preventing disclosure of past acts of harassment;

• The limitation period for harassment claims in an employment tribunal should be extended to six months from three;

• If a claim is brought out of time, the burden of proof should be on the employer to state why the deadline should not be extended, rather than on the employee as it is currently;

• Interim relief provisions for harassment and victimisation claims should be introduced, similar to those for protected disclosure dismissals;

• Employment tribunals should be allowed to make recommendations about the wider workforce, rather than solely about the employer's treatment of the individual claimant;

• Reinstatement of protection from third party harassment though without the requirement to show two previous incidents;

• Re-introduction of the statutory questionnaire.

The Government has responded to the EHRC's report by condemning all forms of workplace harassment and promising to keep matters under review. 

But will they fix the problem? Or at least try? The recommendations above are a good start however the Government is rather busy at the moment and the EHRC’s recommendations may tumble down the list of priorities. It’s therefore doubtful whether any regulation or other action will come from this report. 

Hannah Boynes - Solicitor

For further information on Employment Rights please visit our website or call 0033 3344 9603 and ask to speak with our Employment Rights team.

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

For further information on Employment Rights please visit our website or call 0033 3344 9603 and ask to speak with our Employment Rights team.

Mind the Gap – Gender pay reporting rules

The government has published in draft The Equality Act (Gender Pay Gap information) Regulations 2016. These set out the framework for the new gender pay reporting requirements.

So who will this impact?

The reporting obligation will apply to private, voluntary and public sector employers in the UK with at least 250 employees.

What are the requirements?

Employers will be required to publish the following information:-

1. The overall mean and median gender pay gap across their workforce, using an hourly pay rate for each relevant employee. “Pay” for these purposes is defined broadly and includes basic pay, paid leave, maternity pay, sick pay and most allowances such as car allowances, shift premium pay and bonuses. However overtime, the value of salary sacrifice schemes and benefits in kind will not be included as part of the calculation.
2. The difference between the mean bonus payments made to men and women. The number of men and women in each quartile of the employer’s pay distribution. This is intended to illustrate whether female employees are concentrated in a particular way in terms of their remuneration, which would potentially indicate impediments to career progression.
3. Employers will have the option to publish a narrative to accompany the pay gap information.

Where is the information to be published?

The information must be published on a searchable UK website that is accessible to employees and the public and then maintained for at least three years to allow progress to be tracked. The information must also be uploaded to a government website.

Is there to be any ‘penalty’ for non-compliance?

The plan to introduce a civil penalty in the form of a fine has been replaced with a focus on ‘naming and shaming’ the employers who fail to comply. There is no specific penalty for non-compliance at the moment but this will be kept under review.

So what happens next?

The draft regulations are subject to a consultation that will close on 11 March 2016. The draft regulations are scheduled to take effect on 1 October 2016. Employers will be required to prepare a preliminary data snapshot showing the gender pay position as at 30 April 2017 and the detailed pay information must then be calculated and published on a date of the employer’s choosing but by April 2018 at the latest.

It will be interesting to see how the implementation of the Regulations is carried out, if the website will be up and running on time, and also how many Employers will actually feel threatened enough by the “naming and shaming” to even comply with the Regulations.

Samantha Simpson - Trainee Solicitor

For further information on Employment Rights please visit our website or call 0033 3344 9603 and ask to speak with our Employment Rights team.

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

For further information on Employment Rights please visit our website or call 0033 3344 9603 and ask to speak with our Employment Rights team.

Tolerate All – Except Intolerance?

The European Court of Human Rights has today handed down its decision in a number of cases concerning the right to freedom from discrimination on the grounds of religion and belief.

There’s a good summary on the BBC’s website. Click here to view.

With a good deal of relief, I think that the European Court has got it right in each and every case.

What are the broad principles we can take from these decisions?

• You have a limited right to manifest your religious beliefs by wearing a cross, especially if it is discreet and does not negatively impact the employer’s reputation or brand (there was no evidence in Ms Eweida’s case that the wearing of e.g. turbans and hijabs by other employees had negatively impacted BA’s brand).

• However, that right might be restricted e.g. in a hospital where on health and safety or hygienic grounds a strict prohibition in relation to uniform is reasonably imposed.

• Each country has a wide “margin of appreciation” as to how it strikes a balance between competing rights – and competing rights are I think most likely to arise where e.g. a Claimant suggests that their right to respect for their religion and belief ought effectively to “trump” a third party’s right to respect for their sexual orientation.

• Where an employer imposes a reasonable and lawful set of equality obligations in an Equality and Diversity Policy, say, employees are to be expected to abide by the requirement to respect the rights of others – even if respecting the rights of others might offend against their own religion or belief.

I have argued before that the pro-religious-rights camp is essentially arguing for a right to discriminate on the grounds of sexual orientation. The European Court has made it clear that, as a rule, the law will not tolerate such intolerance.

We applaud the decision. A victory for tolerance and commonsense – and a reminder that, notwithstanding the bile expressed in certain quarters of the media, Human Rights law often strikes exactly the sort of balance that most people imagine it should.

Paul Scholey - Senior Partner

For further information on Employment Rights, please visit our website or call 0113 245 0733 and ask to speak with our Employment Rights team.

Reduction in response time to government consultations

We often, as a firm, voice our collective opinion on government proposals. In recent years, we have spoken out on a number of issues, ranging from the implementation of a cap on trainee solicitors’ wages, to the Jackson Reforms in the field of Personal Injury law and the now imminent introduction of fees in the Employment Tribunals.

We therefore speak from years of experience when we say that clear and considered responses to consultations require a great deal of research and preparation, which can often take several months.

We were therefore alarmed to hear in recent weeks that the government has now introduced new guidance to shorten the twelve week period for which ministers were previously required to consult the public on government proposals to a mere two weeks.

This clearly will make it extremely difficult for interested parties to gather evidence and prepare a reasoned and informed response to policy changes that directly affect us all.

The upshot of this is that, potentially, sections of the public, in particular those with access to fewer resources who will no doubt struggle to meet the two week deadline, will essentially be left without a voice to challenge government policy.

This appears to us to be nothing more than an attempt by the government to suppress opposition.

To place the effect of reducing the consultation period into context, in their response to the reduction of consultation periods the Institute of Employment Rights cite the Enterprise and Regulatory Reform Bill as an example whereby the government introduced, in their words, a “technical amendment” to existing legislation, without consulting the public. This “technical amendment” was to section 47 of the Health and Safety at Work Act 1974, the significance of which is far-reaching as it overturns the law imposing employers’ strict liability for the health and safety of their employees, which has been in effect for 114 years.

The implications of this are that various existing personal injury clients of our firm who suffer from life-long, incapacitating injuries, including one client who lost an eye, and potentially a career, due to faulty work equipment, would in future have been prevented from bringing their claims against their employer.

We therefore share the view of the Institute of Employment Rights and have supported their ongoing petition to the Secondary Legislation Scrutiny Committee to voice our opposition to the government’s blatant attempt to stifle the voice of opposition.

Christopher Ridley - Solicitor

For further information on Employment Rights, please visit our website or call 0113 245 0733 and ask to speak with our Employment Rights team.