Third party harassment

Third party harassment can happen in the workplace when someone other than the employer harasses the employee. This might include patients, customers or visitors. The Employment Appeal Tribunal has recently looked at whether an employer will be responsible for third party harassment.

In Bessong v Pennine Care, the employee was a nurse. He was assaulted and injured by a patient who shouted racist abuse at the same time. The employer called the police but didn’t mention the racial element. The employee brought various claims against the employer, including one for racial harassment based on the attack. The employment tribunal dismissed the harassment claim. They found that the Trust had failed to create a culture where racist incidents were reported, making racial harassment from patients more likely. Although this was unwanted conduct by the employer, it was not conduct related to race. The employee's harassment claim failed.

The Employment Appeal Tribunal agreed. The employer's actions (or failure to act) had to relate to race (or another protected characteristic) for the employer to be liable. In this case, the employer's failure to take adequate steps to prevent racial harassment at work was not due to race.

A government consultation has taken place recently on whether to introduce new third-party harassment provisions into the Equality Act 2010. Calls for this change have come from the Equality and Human Rights Commission and the Women and Equalities Select Committee. We are still waiting for the outcome of this consultation so watch this space. Also look out for the employee's appeal in this case.

Legal privilege

Confidential advice between lawyer and client cannot be used in court proceedings unless the document is created for a fraudulent or criminal purpose. The Court of Appeal has looked at how this principle works in Curless v Shell.

The employee was a lawyer for Shell who had diabetes and sleep apnoea. He brought a discrimination grievance and was later dismissed as part of a reorganisation and redundancy process. He brought tribunal proceedings based in part on a leaked email to Shell from its lawyers which referred to the pros and cons of dismissing 'an individual' as part of the restructure process. The employee said the individual was him. He said the letter wasn’t privileged because it referred to hiding a discriminatory dismissal in a redundancy exercise.

The employment tribunal said the email was privileged. Referring to potential discrimination was not enough to disapply legal privilege. The Employment Appeal Tribunal disagreed. They said the letter referred to cloaking a discriminatory dismissal in redundancy to avoid more discrimination complaints. The Court of Appeal reversed the decision again. The kind of advice the letter contained – how and whether to include someone with an ongoing discrimination claim in a wider redundancy process – was the sort of advice given day in day out by lawyers. It was not part of a dishonest plan and could not be used as evidence in tribunal proceedings.

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Work hours and overtime

We all find it difficult to switch off from technology. Work email being accessible on phones has blurred the lines between home and the office. Companies worried about these blurred lines are taking steps to stop employees from working outside work hours. Volkswagen has set up systems so that emails can only be sent to employees' phones from half an hour before the working day starts and for half an hour after it ends, and never at weekends. Lidl in Belgium has also banned internal emails between 6pm and 7am to help staff switch off.

Could this method of trying to protect your employees cause them more harm than good? The University of Sussex has done research which suggests a blanket ban might help some staff to switch off but might result in other employees not achieving their goals and causing stress.

A better plan might be to allow people to deal with email in a way which suits their personalities and allows them to feel like they are managing their workload. Some people might appreciate, or need, flexible working patterns that necessitate some work outside normal hours. The key for employers is to ensure they have a policy that sets out clear parameters for working outside normal hours. Employees need to know that it is a genuine choice, rather than a compulsion.

Philosophical belief discrimination

The Court of Appeal has considered whether it was discriminatory on the grounds of belief to dismiss an employee for asserting her right to own the copyright in her own creative works. In Gray v Mulberry, the employee refused to sign a standard contract assigning copyright in the work she produced whilst employed to Mulberry. She was scared that it would give them ownership of other written work she produced in her spare time. The contract was changed to exclude the written work, but she still refused to sign it and was dismissed.

The employee claimed that her belief in 'the statutory human or moral right to own the copyright and moral rights of her own creative works and output [unless made for the employer's benefit]' was a philosophical belief and protected under the Equality Act 2010. She said her dismissal for this belief was discriminatory.

To qualify as a philosophical belief, a belief must attain a certain level of cogency, seriousness and importance. The belief must be similar in status to a religious belief.The employment tribunal said the belief in this case lacked the cogency needed to qualify as a belief. The Employment Appeal Tribunal confirmed that the tribunal had not set the bar too high when making its decision. The Court of Appeal came to the same decision, on slightly different grounds. They said there was no connection between the employee's stated belief and her dismissal. She had refused to sign the contract, and was dismissed, because she felt the wording did not properly protect her own interests. The Court of Appeal said a debate or dispute about the wording of a contract could not be a philosophical belief.

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Confidentiality agreements

Hot on the back of the #MeToo movement, the Equality and Human Rights Commission (EHRC) has published some non-statutory guidance on the use of confidentiality or non-disclosure agreements in discrimination cases. The guidance confirms that confidentiality clauses can be used in employment contracts to protect a business's confidential information. However, they shouldn’t be used to stop a worker pursuing a discrimination claim in relation to future acts – those clauses will not be enforceable.

The guidance discourages the habitual use of gagging clauses when settling discrimination claims. It suggests they are only used in specific circumstances such as a case where a worker does not want the details of their discrimination case to become public. The guidance also advises employers to tailor the clause to the individual case rather than using a standard template. The guidance also suggests that employers might still need to investigate claims which are settled to show they have taken steps to prevent discrimination in the workplace.

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Religious discrimination

Religion and the rights of the LGBTQA+ community have had some high-profile clashes. An employment tribunal has recently considered whether a doctor's religious beliefs 'trump' the right of someone who is transgender to be addressed by their chosen pronoun (he, she, they). Article 9 of the European Convention on Human Rights allows people the right to freedom of thought, conscience and religion. However, this right is limited if necessary, to protect the rights and freedoms of others.

In Mackareth v DWP, the employee was a Christian and a doctor. He believed that God creates people as men or women and opposed transgenderism. He believed that it would be irresponsible for a doctor to accommodate or encourage transgenderism. He was recruited by the DWP to be a Health and Disabilities Assessor. When he refused to agree to the DWP's rules regarding respect for transgender service users' desired pronouns, he was dismissed. He brought claims for discrimination based on his Christian religion and beliefs.

The employment tribunal said his Christianity was protected by the Equality Act 2010. However, his beliefs in relation to transgenderism were not protected because they were incompatible with human dignity and conflicted with the fundamental rights of transgender people. The tribunal also said that refusing to address someone by their preferred pronouns would be discriminatory under the Equality Act 2010. Anyone who refused to do this would have been treated in the same way by the employer, regardless of their beliefs.

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Unfair dismissal

Is a dismissal unfair if the employer changes an investigation report following advice from an in-house lawyer? Not in this case, said the Employment Appeal Tribunal in Dronsfield v The University of Reading. The employee was a professor who had a sexual relationship with a student. University rules said he could only be dismissed for immoral, scandalous or disgraceful conduct. The University investigated the allegations and produced a report. An in-house lawyer suggested some changes, including parts which were favourable to the employee.

The employee was dismissed. He brought an unfair dismissal claim which he lost. The employment tribunal said it was fair for the employer to have their lawyers advise the investigative team. The lawyer's advice had been to limit the report's conclusions to whether there was a case to answer and remove 'evaluative opinions' about the employee's conduct. The lawyer said those judgements should be left to the disciplinary panel. The employee appealed.

The EAT upheld his dismissal. The employer was entitled to act on the advice of their solicitor. The changes to the report were considered at the internal appeal stage. The appeals officer had considered the two reports and concluded that no pressure had been put on the investigators to change the report and the changes were not made to make the employee's dismissal more likely. The dismissal was fair. Although the dismissal was fair in this case, the investigators tripped up initially by making evaluative judgements about the employee's conduct rather than sticking to their job: fact finding and making a recommendation about whether further action (such as a disciplinary hearing) is required. The ACAS guide to conducting workplace investigations might be helpful to anyone conducting an investigation. Find it at https://m.acas.org.uk/media/4483/Conducting-workplace-investigations/pdf/Conducting_Workplace_Investigations.pdf

New ACAS guidance on menopause

This once taboo topic has been high profile lately. Half of the population will go through the menopause and yet it has historically been off limits as a discussion topic. Menopause is more important now than ever with older workers expected to stay in work for longer. ACAS have produced some practical guidance on handling menopause in the workplace.

The guidance goes through what menopause is and the potentially debilitating symptoms it can produce for women. It suggests potential adjustments, from providing desk fans and extra rest breaks to being flexible about start and finish times.

Handling menopause symptoms carefully is essential rather than good practice. Menopause symptoms have been accepted as a disability in tribunal proceedings. Handling things badly could also result in age and sex discrimination claims. Managing menopause effectively will help you retain your best talent and reduce recruitment costs. The main message from the guidance is the importance of openness about the subject and understanding of its effect. Key to this is creating an environment where employees feel confident to raise the subject. A policy is helpful in starting the conversation and educating staff at all levels. Read the guidance here: https://www.acas.org.uk/index.aspx?articleid=6752

Race discrimination

Sometimes employers want to minimise disruption when dismissing an employee, even for misconduct. Putting a false redundancy label on a misconduct situation can be costly though, even if it is well intentioned. The Court of Appeal looked at this issue recently in Base Childrenswear v Otshudi.

The employee was a photographer from the Democratic Republic of Congo. She had been employed for three months when she was made redundant. The employee alleged to the dismissing manager that her dismissal was related to her race, which he strongly denied. Her subsequent grievance was ignored. She then brought a discrimination claim. The employer defended the claim, maintaining that her dismissal was due to redundancy.

Over a year later, only a few weeks before the hearing, the employer changed its defence. They said the employee had been dismissed due to suspicions of theft. He said he had lied about the reason for dismissal to avoid confrontation with the employee. At the hearing, the employment tribunal upheld the discrimination claim. The tribunal drew inferences from the employer's refusal to respond to the discrimination grievance.  The employer had continued to cite redundancy as the reason for dismissal when it was clear that confrontation was unavoidable. The tribunal said that the employer was trying to cover up a dismissal tainted by race. The Court of Appeal refused to interfere. They said that giving an entirely false reason for treatment in the face of a discrimination allegation can be a sign that discrimination has taken place. Although the employer's belief in the employee's guilt may have been genuine, the Court of Appeal said it was based on so little evidence or investigation that it had to be down to stereotypical assumptions about black people.

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What is ‘off the record’?

Off the record conversations can play a vital role in resolving workplace disputes. Section 111A of the Employment Rights Act 1996 says that confidential discussions about ending an employee's employment can be 'off the record' in certain circumstances. These are known as 'protected conversations'. If s111A applies, termination discussions cannot be used as evidence in an unfair dismissal claim unless there has been 'improper behaviour' by the employer.  Section 111A only applies to ordinary unfair dismissal claims. Consequently, the content of termination discussions can be used as evidence in other claims, such as automatic unfair dismissal (for example a pregnancy related dismissal) and discrimination claims.

In Harrison v Aryman, an employee resigned and claimed constructive dismissal after a series of discriminatory acts relating to pregnancy and sex. She said the last straw was a 'confidential settlement proposal' she received from her employer shortly after she announced her pregnancy. The employer said the letter was off the record due to s111A. The employee said the letter was part of the employer's improper discriminatory behaviour and she should be allowed to use it in evidence.

The employment tribunal found that s111A applied, meaning the employee could not refer to the letter in her unfair dismissal claim. The employee appealed. The Employment Appeal Tribunal said the tribunal had got it wrong. When an employee's claim is for automatic unfair dismissal, such as a pregnancy related dismissal, s111A does not apply and the content of a protected conversation can be used in evidence. This is different from the situation in a normal unfair dismissal claim where an employee wants to refer to a protected conversation because they allege improper conduct. In that case the tribunal will need to hear evidence about the improper conduct before deciding whether the evidence can be used.

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Unfair dismissal and extensions of time

Most employment claims should be brought within a three-month time limit. If it is not 'reasonably practicable' for an employee to present his claim within the three-month time limit, an employment tribunal has the discretion to extend the time limit. There are two questions the tribunal must ask: was it reasonably practicable to lodge the claim within the time limit? If not, was it then lodged within a reasonable period? The ACAS early conciliation process provides a potential one-month extension of time following the conclusion of early conciliation. However, this only applies if ACAS were contacted within the initial three-month time limit. The EAT has looked at this issue in Pearce v Bank of America Merrill Lynch.

The employee was employed as Managing Director Head of Sterling Credit. He had been off sick since July 2017. He said his absence resulted from being treated badly because he blew the whistle on poor practice. He contacted solicitors in November 2017, two and a half months after the last 'detriment'. The time limit for lodging a claim expired later in November. ACAS early conciliation started in December, outside the three-month time limit. Conciliation ended in January 2018. The employee didn’t lodge a tribunal claim until February 2018, a month after ACAS conciliation had ended.

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Commute times

Analysis by the Office for National Statistics has shown that women who commute for an hour are nearly 30 per cent more likely to leave their jobs than if they have a ten-minute commute. The ONS believes this is due to childcare commitments. In comparison, men are more likely to look at money as the reason for leaving their job. They are prepared to travel for longer to get higher pay. The ONS believes this contributes to men doing the higher paid work which fuels the gender pay gap.

Amber Rudd, Minister for Women and Equalities, has said that women find it difficult to balance their job with their parenting responsibilities. She says she is determined to help women find a balance between higher pay, career progression and their childcare and family commitments. Plans include consultation on proposals to better support parents and improving access to information on family related matters such as childcare support and parental leave. They also intend to explore 'innovative pilots' to deliver more flexible working in SMEs and sectors with a high number of low paid employees. It will be interesting to see how these worthy principles translate into practice.

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Mental health in the work place

Is your workplace culture contributing to the ‘psychological harm’ of your employees? It sounds dramatic but a survey of 4000 employees commissioned by Business in the Community (BITC) and Mercer Marsh Benefits suggests that employers aren’t doing enough to address the effect of work on employees’ mental health.

Getting top billing for their negative effect on mental health are excessive targets, having to work overtime due to workload, and feeling unsupported. Managers talked about barriers to providing mental health support with more than half of managers putting business needs above employee wellbeing. Almost half of managers weren’t assessed on how they managed employee wellbeing.

The message coming from BITC is that employers aren’t making the changes necessary to improve employees' mental health. Mental health awareness has risen dramatically and a cultural shift is required to keep up. The report says three key areas to address are creating good work which enhances mental health, acknowledging and supporting poor mental health and publicly reporting on staff wellbeing performance.

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Disability discrimination

A person is disabled if she has a physical or mental impairment which has a substantial and long-term adverse effect on her ability to do day to day activities. To be 'long-term' an impairment must have lasted, or be likely to last, at least 12 months. An impairment can be treated as continuing when it has stopped if it is likely to recur. Likely means it is more probable than not.

In Parnaby v Leicester City Council, the employee was a head caretaker. He was dismissed for long term sickness absence due to work related stress. The employee brought several discrimination claims. The tribunal's first job was to decide if he was disabled. They found that his condition did not meet the 'long-term' requirement. His work-related stress had not lasted 12 months by the time his employment ended, and he hadn’t seen his GP since then. His recovery coincided with his employment ending. Therefore, it wasn’t long term.

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Vegetarianism and Philosophical belief

A philosophical belief might be a protected characteristic if it:

  • Is genuinely held and isn’t just a viewpoint or an opinion;
  • Relates to a weighty and substantial aspect of human life and behaviour;
  • Attains a certain level of cogency, seriousness, cohesion and importance and be worthy of respect in a democratic society;
  • Is compatible with human dignity and not conflict with other people's fundamental rights.

An employment tribunal has decided that an individual's belief in vegetarianism is not protected by the Equality Act 2010. In Conisbee v Crossley Farms, the tribunal said that vegetarianism was an opinion or viewpoint rather than a protected belief. The tribunal did not believe that vegetarianism was a weighty belief about a substantial aspect of human life and behaviour. Rather it was a lifestyle choice. A belief that animals shouldn’t be killed for food was an admirable sentiment but did not relate to a weighty and substantial aspect of human life and behaviour. In relation to requirement that the belief attain a certain level of cogency, cohesion and importance, the tribunal noted the many different reasons for people being vegetarian (lifestyle, health, diet, concerns about methods of animal rearing for food, personal taste). This could be contrasted with veganism where the arguments are largely the same, 'a clear belief that killing and eating animals is contrary to a civilised society and also against climate control'.

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Redundancy pay

In a redundancy situation, an employee might be entitled to both statutory and contractual redundancy payments. Statutory redundancy payments are calculated using age, length of service and weekly pay (currently capped at £525). Contractual payments can be more generous. What happens when a contractual sum isn’t paid, and the employee brings a breach of contract claim to recover it? Does the statutory redundancy element form part of the £25,000 cap for a breach of contract claim in the employment tribunal?

In Uradar v Lancashire Care NHS Foundation Trust, the employee's contractual redundancy pay was about £44,000, including the statutory element of around £6000. The employee was dismissed but the employer said he had refused suitable alternative employment so refused to pay the redundancy pay. The employee brought a tribunal claim and won. The tribunal said the statutory redundancy element was part of the breach of contract claim and awarded him £25,000 (the maximum allowed), rather than £25,000 plus £6000 for the statutory redundancy pay. The employee appealed.

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Gig economy

Worker status is the holy grail in the gig economy, including the fields of taxi rides, food delivery and courier services. Workers are entitled to certain employment rights such as the national minimum wage and paid holiday, whereas the genuinely self-employed are not. Section 230(3) of the Employment Rights Act 1996 defines a worker as someone who works under a contract of employment or another contract 'where the individual undertakes to do or perform personally any work…for another party who…is not...a client or customer of…the individual'. Case law has expanded on this definition and looked at issues such as mutuality of obligation, control, integration into the business and personal service.

Various questions have been referred to the Court of Justice of the European Union (ECJ) in the case of B v Yodel. The claimant was a courier who delivered parcels for Yodel. He used his own vehicle and mobile phone. His wore no uniform and carried no Yodel ID. He had a handheld Yodel device from which to receive information from Yodel and for Yodel to track his performance. He was not obliged to do any work and Yodel was not obliged to give him any. His contract said he could work for other companies. The contract also said he could send a substitute to do his work provided the substitute had the same level of skills and qualifications. B never sent a substitute to do the work but others on the same contract had done so. Does this defeat his claim to worker status? His contract says he is self-employed, but is he? The ECJ is being asked to decide whether the ability to send a substitute will defeat worker status. The referral includes numerous other questions relating to this gritty issue in the hope of finding some clarity. We continue to watch this gig economy space.

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Injury to feelings

If an employee wins a discrimination claim, the employment tribunal will award compensation for injury to feelings. There are three bands: top band for the most serious cases (currently £26,300 - £44,000); middle band for serious cases not worthy of a top band award (£8,800 - £26,300) and bottom (£900 - £8,800) for less serious cases including one off incidents. The award is based on the effect of the discrimination on the employee, rather than the gravity of the discrimination. The EAT highlighted this important distinction in Komeng v Creative Support.

The employee won his claim for race discrimination. His employer had treated him less favourably than colleagues in relation to training opportunities and weekend work. In assessing compensation, the tribunal said that the treatment must have caused the employee 'significant upset and distress'. They awarded compensation at the top of the lower band, £8,400. That equated to two thirds of his net annual salary. The tribunal said that they would have awarded middle band compensation if the training course could have resulted in promotion and the employee had been disappointed about that loss of opportunity. However, this argument had not been raised.

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Working time

Under section 45A of the Employment Rights Act 1996, workers have the right not to be treated badly by their employer for refusing to work in breach of the Working Time Regulations 1998 (WTR). If such a refusal is the reason (or main reason) for an employee’s dismissal, their dismissal will be automatically unfair. The case of Paxur v Lexington Catering Services examines how explicit that refusal needs to be.

The employee was a kitchen porter. He had previously been assigned to a client, Lexington, who did not allow him to take his 20-minute rest break. When asked to return to Lexington for work, the employee refused. He was threatened with the sack, and then sacked, for refusing to go. He brought a detriment claim and a claim for automatic unfair dismissal.

The employment tribunal said that the requirement to return to Lexington was a requirement to work in a way which breached the WTR (because of the refusal to allow a rest break). However, the tribunal said that the employee had not provided enough evidence to show that his refusal related to the WTR issue, rather than just a general dislike of the chef at Lexington. The EAT agreed that an explicit WTR-related refusal was required. However, in this case the tribunal had overlooked evidence that the refusal was related to the WTR issue. The EAT upheld the detriment claim and sent the unfair dismissal claim back to the same tribunal panel to decide whether the dismissal was related to the refusal to work without rest breaks.

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Harassment

Harassment has been in the legal news again this month. Anthony harasses Belinda if he does something in relation to a protected characteristic (race, sex etc) which has the purpose or effect of violating Belinda's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her. The connection between the protected characteristic and the conduct is key. The burden of proof – who must prove what - is important in discrimination cases too. If an employee can prove facts from which, in the absence of another explanation, a tribunal could conclude harassment has occurred, then the burden of proof shifts to the employer to show that it did not happen. The Employment Appeal Tribunal (EAT) has looked at both these issues in Raj v Capita Business Services.

The employee was employed for less than a year and had performance issues before he was dismissed. He brought numerous claims against the employer. One claim was for sex harassment, alleging that his female manager had massaged his shoulders in an open plan office. The manager denied that the conduct had taken place, but other witnesses supported the employee's version of events. They said the massages were accompanied by words of encouragement in relation to the employee's performance.

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Constructive knowledge of disability

Constructive knowledge of disability

An employer will not discriminate against someone because of their disability if the employer did not know, and could not reasonably have been expected to know, that the employee was disabled. Whether an employer could reasonably be expected to know about a disability is often referred to as 'constructive knowledge'.

In A v Z, the employee was employed as a part time finance coordinator for less than six months. She had stress, depression, low mood and schizophrenia but had not told her employer about these conditions. When she was recruited, she had explained away significant historical sickness absence with physical illness. She completed a form saying she did not have a disability. During her short period of employment, the employee had 85 days' absence, with 52 days recorded as sick. Again, the employee said her absence was due to physical illness. She did not mention any mental health issues. She was signed off with low mood and wrote to the employer a week later, saying she was 'incredibly depressed' due to family problems. However, she did not tell her employer when she was hospitalised for two weeks for psychiatric care and continued to explain her absence with physical illness. When she was dismissed, she brought a disability discrimination claim. The question for the tribunal to decide first was whether the employer had constructive knowledge of her disability.

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