Saturday, 23 February 2013

Equality & Diversity News: March 2013

In this edition:

  • No absolute rule on whether workers are entitled to avoid shift on days which clash with their religious belief
  • New Guidance on Religion and Belief in the Workplace
  • Justice for dinner lady who told of school bullying. 3
  • Judge says £420,000 racism claim can stand, after 13 years of 'Dickensian' wrangling
  • Dismissal for Political affiliation or opinion
  • Harassment on Grounds of religion
  • “Dinosaurs, rockets, pirates and robots” – not for girls at John Lewis
  • Time off for dependants: six absences totalling seven days in 12 months was “reasonable”
  • Ugandan anti-gay legislation leads Buckingham University to suspend degree validation
  • Recycling Hatred
  • Male student under-representation a priority for BIS
  • Top 100 gay-friendly employers
  • Public Sector Equality Duties: EHRC explains specific duty regulations

No absolute rule on whether workers are entitled to avoid shift on days which clash with their religious belief

Mba v The Mayor and Burgesses of the London Borough of Merton UKEAT/0332/12

Just when we thought we had heard enough on the issue of religious rights at work along comes another case which may drag its way through the courts over the next year or so.

In this case the employment tribunal and EAT held that here is no absolute rule as to whether workers are entitled to avoid working shifts on days which clash with their religious beliefs. It will mainly depend on whether the employer can justify requiring the individual to work in the particular circumstances of the workplace.

However, it is possible that this case may need to be reconsidered in the light of the recent European Court of Human Rights cases (see previous newsletter), especially that of Ewieda. The question may arise is this case: did the employment tribunal and EAT give sufficient weight to Ms Mba’s important religious/human rights not to be discriminated against, when balanced against the needs of the employer and their ability to make reasonable adjustments?

 It also appears that the EAT got it wrong on the issue of whether or not the condition or requirement is a tenants of the faith, or of just some adherents (e.g. a rule not to work Sundays is not a component of the Christian faith per se, but is clearly important to many Christians). The ECtHR was clear that it did not have to be a manifestation of the religion that is practice by all - it only had be an important part of the faith for some adherents and not unreasonable.

As this case predated the recent ECtHR decisions the case may be successfully appealed. Watch this space....

The facts were as follows:

Ms Mba worked as a residential care worker at a registered children’s home, which provided short residential breaks for children with serious disabilities and who had complex care needs. After accommodating her wish as a Christian not to work Sundays for some time, her employer decided she must share the Sunday shifts along with everyone else. When she refused to do so, she was given a final written warning. Ms Mba resigned and brought a tribunal claim for indirect religious discrimination.

The tribunal said the Council’s imposition of the Sunday rota on Ms Mba was objectively justified, so her indirect discrimination claim failed. It accepted that the employer had a number of legitimate aims in imposing Sunday shifts on Ms Mba, i.e. to ensure (a) an appropriate gender balance on each shift, (b) an appropriate seniority mix on each shift, (c) a cost effective service in the face of budgetary constraints, (d) fair treatment of all its staff, and (e) continuity of care in staff looking after the children at the home. If Ms Mba did not work Sundays, other staff would have to do so disproportionately. It was also more expensive to employ agency staff on Sundays and they were less well trained.

The tribunal also thought it was proportionate for the employer to insist on Ms Mba participating in the Sunday rota. It weighed up the discriminatory impact on Ms Mba against the reasonable needs of the Council’s business.

Although it accepted the requirement impacted on Ms Mba’s genuine and deeply held religious views, it noted that the Council had made efforts to accommodate her for about two years, and also that it was prepared to arrange shifts so that she could attend church each Sunday. It also noted that Ms Mba’s belief that she must not work Sundays was not a core component of the Christian faith.

The EAT said the tribunal was entitled to say any indirect discrimination was justified. When deciding whether it is proportionate to apply the discriminatory requirement, a tribunal must balance the employer’s reasonable needs against the impact on the disadvantaged group - in this case, other Christians. The EAT said the only relevance of a tribunal stating that a rule not to work Sundays was not a component of the Christian faith was when it was considering justification. Generally speaking, it is not for courts and tribunals to decide what are the tenets of a particular faith or what an individual believes. However, when considering justification, if a discriminatory requirement affects virtually every Christian, it would have a greater discriminatory impact than if the same measure affects only a much smaller number of Christians. The greater the discriminatory impact on the group as a whole, the more that has objectively to be shown by the employer to demonstrate that the requirement is necessary, and proportionate.

Source: Discrimination Law Association

New Guidance on Religion and Belief in the Workplace

Also hot on the coat-tails of the recent ECtHR cases, the Equality and Human Rights Commission (EHRC) has issued new guidance for employers and employees on religion and belief in the workplace which contains a number of very useful examples of requests and how employers might deal with them as well as a Q&A section that addresses some key employer questions.

You can read the guidance here:

Justice for dinner lady who told of school bullying

A school dinner lady who was unfairly sacked after telling a seven-year-old girl's parents that their daughter had been tied to a fence and hit with a skipping rope has won her two-year battle for compensation.

The decision by an Essex primary school to sack Carol Hill for blowing the whistle on the playground bullying incident was ruled unfair in 2011 but a tribunal
D But that has now been overturned by an appeal tribunal in a decision welcomed by Mrs Hill, 64, as a “step closer to justice”.

A further hearing must now be held to determine a new payout. Mrs Hill had been suspended and later dismissed over “breach of confidentiality” after telling a pupil’s mother and father about the playground bullying incident in June 2009.
An employment tribunal at Bury St Edmunds, Suffolk, ruled in January 2011 that the school had not carried out a “fair, proper and reasonable” investigation before dismissing her.

But the following month the same panel ruled that she would have been sacked in any case for going public with her story, even if the correct dismissal procedures had been followed. She was awarded just £351.82, including just over £300 in back pay and £49.99 in “compensation”.

An earlier hearing was told how Mrs Hill was doing playground duty when she saw that the girl had been tied to a fence by her wrist and then "whipped" across the legs with a skipping rope by a group of boys. The head teacher, Deborah Crabb, sent a letter to the girl’s parents saying that she had been hurt in a “minor accident” with a skipping rope. They only learnt the full details of what had happened when Mrs Hill got talking to the girl’s mother outside a Scout meeting. The girl’s parents were furious and have since withdrawn their children from the school.

On Tuesday Mrs Hill said: “It has been a horrible ordeal but I feel a step closer to justice. I was never doing it for the money, I was doing it because I believe what I did was right.” Mrs Hill now works as a cleaner around the village but said she missed her old job. “I loved that job, I would definitely still be doing it if this had not happened.”

Dave Prentis, general secretary of public sector union Unison, said: “Carol has been put through a terrible ordeal by the school and lost a job she truly loved.
“The value of someone being free to speak out against injustice must be upheld and this decision by the employment appeal tribunal strengthens and clarifies this important principle.”

A statement from Great Tey Primary School said: “The employment appeal tribunal upheld Mrs Hill’s appeal into her compensation payout following dismissal from Great Tey Primary School. “It does not change the outcome of the overall case but there may need to be a further liabilities hearing at an employment tribunal to reassess the amount originally awarded.”

Source: The Telegraph

Judge says £420,000 racism claim can stand, after 13 years of 'Dickensian' wrangling

A race equality campaigner who won £420,000 compensation after a council-funded anti-racism group turned her down for a job has emerged victorious from a "Dickensian" court battle - at the ultimate expense of the public purse.

Lord Justice Mummery, the employment judge, said qualified barrister Natasha Sivanandan's 12-year battle with the London Borough of Hackney was "a 21st Century version of a 19th Century Chancery saga". The progress of the case read like "a Dickensian narrative of allegations and counter- allegations...misunderstandings, objections, complaints ...and repeated wrangling." But, despite the huge cost to the council, the payout could stand, he said.

The saga began in June 1999 when 58-year-old Ms Sivanandan, who lives in Wood Green, North London, applied for a job as a training and development coordinator and race discrimination case worker with Hackney Action for Racial Equality (HARE).

She was turned down for the post with the charitable advice service, partly funded by Hackney, following an interview in July that year and, within months, had started proceedings against both HARE and the Council, alleging victimisation under sex and race discrimination legislation.
She claimed that she had been treated unfairly in the interview, because she had brought a previous discrimination case against HARE after being turned down for another job.

In April 2002 she was awarded £15,076 by an employment tribunal (ET) in relation to that original complaint, and in June 2003 the ET found that HARE and the Council were liable to pay out for victimisation of Ms Sivanandan in relation to both interviews.

In 2007 she was awarded £1,905.41 against one of her interviewers in relation to "injury to feelings caused by race discrimination". Then, in 2009, she was handed a £421,415 payout against the Council.

Hackney appealed, with its barrister Robin Allen QC arguing that the payout's impact on the council and public funds was "disproportionate."
He argued it was unfair for the Council to be landed with such a huge bill, as well as 12 years-worth of lawyers' fees, when a "very much smaller sum" was awarded against the interviewer who Mr Allen described as "the primary discriminator."

Lord Justice Mummery, giving his decision on the appeal, expressed surprise at the sums involved, saying: "On the face of it £421,415 seems to be a great deal of money to compensate Ms Sivanandan for acts of discrimination in two unsuccessful job interviews."

However, dismissing Hackney's appeal, the judge said the employment tribunal had been entitled to find the Council liable for the full amount of Ms Sivanandan's compensation.

The court defeat is a blow for Hackney which now faces legal costs bills which may even exceed the amount of Ms Sivanandan's payout, meaning the final cost for refusing Ms Sivanandan a job could come to close to £1m.
Lord Justice Mummery acknowledged that the case had cost "a very large amount of public money" but refused to grant Hackney permission to appeal further to the Supreme Court.

Source: The Telegraph

Dismissal for Political affiliation or opinion

Following an earlier report in this newsletter on the Redfearn ECtHR case, which anticipated the possibility of the emergence of a 10th “protected characteristic” of “political opinion or belief”, the Government recently (February 14th) issued the following the statement:

Dismissal for Political Opinion

My Noble Friend, the Parliamentary Under-Secretary of State for Business,
Innovation and Skills (Viscount Younger of Leckie), has today made the
following statement.

The Government takes the United Kingdom’s responsibilities to comply with human rights protections seriously. With that in mind, we are taking steps to amend our legislation following a recent European Court of Human Rights (“ECtHR”) ruling.

In November 2012, the ECtHR held that the United Kingdom was in breach of Article 11 of the European Convention on Human Rights by preventing individuals who do not have a qualifying period of service from making claims for unfair dismissal on grounds of political opinion or affiliation. The ECtHR considered that the UK Government should amend its legislation to protect employees who suffer such dismissals.

In the case, Redfearn v UK, a bus driver was dismissed after he became a
BNP councillor. Mr. Redfearn was unable to bring a claim for unfair dismissal because he did not have the requisite qualifying service. In principle, the Court agreed that a qualifying service period is reasonable and appropriate. The ruling is a narrow judgement, limited to instances where the alleged reason for dismissal is political affiliation or opinion.

Having considered the judgement, the Government has decided not to appeal this decision. To bring our legislation into line with the ruling, we have tabled an amendment to the Enterprise and Regulatory Reform Bill, currently before the House of Lords. This amendment exempts claimants who allege that their dismissal was on the grounds of political opinion or affiliation from the 2 year qualifying period.

Following the necessary Parliamentary stages, this additional protection would come into effect two months after the Bill receives Royal Assent and would apply to dismissals after that date.

Whilst not explicitly recognising political beliefs and opinions as protected under equality legislation, the effect of this change to the law would be to make it  de facto so, as the two year requirement to bring proceedings for unfair dismissal on such grounds has been dropped – which brings it into line with all the other protected characteristics in the Equality Act 2010.

Harassment on Grounds of religion

Did the question 'What's happened to the fucking Pope?, shouted in a pressured newsroom, amount to harassment on grounds of religion of a Catholic sub-editor present at the time? Obviously not, says Underhill J in Heafield v Times Newspaper Limited.

The employment tribunal found that the conduct was unwanted, but not done with the purpose of creating an adverse environment for Mr Heafield; if Mr Heafield experienced the environment as adverse, that was unreasonable of him. And it was not done on grounds of Mr Heafield's religion or belief.

Mr Heafield appealed, arguing that the tribunal had wrongly treated the speaker's purpose as conclusive that the words could not create an adverse environment; and that it had erred in relying on the speaker's motive in finding that the words had not been said 'on grounds of' Mr Heafield's religion.

Underhill J emphatically rejected the first argument: the employment tribunal had not treated the speaker's purpose as conclusive, but had legitimately treated it as relevant. He accepted that the relevance of motive in deciding the 'on grounds of' question was less straightforward. But since his conclusion on the first question disposed of the appeal, he did not need to deal with that argument.

Source: Daniel Barnett’s Employment Law Bulletin

“Dinosaurs, rockets, pirates and robots” – not for girls at John Lewis

I could not resist reproducing this article by Martin Belam:

I was shopping in John Lewis today, when I saw a great set of Jennie Maizels patches to sew on children’s clothing — dinosaurs, rockets, pirates and robots. All of my child’s favourite things.
I was going to buy it, and then I peered a little closer at the packaging…

 Dinosaurs, rockets, pirates and robots designed by Jennie Maizels            Jennie Maizels

Ah, not intended for my little daughter. Clearly she isn’t meant to like dinosaurs, rockets, pirates and robots.

This stuff drives me mad.

It isn’t like we’re trying to bring her up in some kind of gender-neutral vacuum. The other night I came home from work and she was perfectly happy in a Snow White Princess dress.

But I just don’t see any need for ridiculous gender-stereotyping in products that could quite easily be aimed at all children, not just a sub-set of them. I think the thing that disappoints me most is thinking about the entire supply chain involved in getting a product onto the shelves at somewhere like John Lewis.

And during that process not one person has thought, you know, we could label these as being for “Little explorers” or “Little adventurers” instead, and market the set at everybody in the store, rather than trying to dictate what “Little girls” aren’t meant to like.

Time off for dependants: six absences totalling seven days in 12 months was “reasonable”

Naisbett v Npower Ltd ET/2502795/12

The employment tribunal held that a mother's six absences totalling seven days in a 12-month period constituted a "reasonable" amount of time off for dependants under s.57A of the Employment Rights Act 1996.

Ms Naisbett, who worked from 9am to 5pm from Monday to Thursday, has a child who was three years old at the relevant time. The child attended nursery, and Ms Naisbett could receive only limited childcare help from her partner because he worked away from home and from her parents because they ran two public houses. In general, it fell to Ms Naisbett to look after the child when he was too ill to attend the nursery.

From March 2011 to February 2012, Ms Naisbett had seven days' absence (five one-day absences and one two-day absence). On each occasion, she invoked the employer's policy on time off for dependants and was granted the emergency absence. It was accepted that she followed the employer's procedure (telephoning on the morning of each day's absence) and that the reason for her absence was entirely due to her son being ill and not able to attend the nursery, and the absence of anyone else to look after him.

In February 2012, the employer invited Ms Naisbett, who had been given no prior indication of any concerns, to a "formal capability meeting" for "non-medical absence". The outcome of the meeting was a letter giving her what the employer described as a "first written notification of concern" and threatening her with dismissal if she had "further unsatisfactory attendance due to time off for dependants".

Ms Naisbett brought a tribunal claim alleging that she had been subjected to a detriment for exercising her right to time off for dependants.
The employment tribunal rejected the employer's argument that its "first written notification of concern" did not amount to a warning and could not be a detriment. The letter was identical to a written warning under the employer's disciplinary procedure and Ms Naisbett was left in no doubt that, if her attendance did not improve, further action, including dismissal, could be taken.

The employment tribunal, noting the lack of case law on time off for dependants, relied on the EAT guidance in Qua v John Ford Morrison Solicitors [2003] IRLR 184 EAT. The EAT said that the employee is not entitled to unlimited time off and the right is to deal with something unforeseen. Once it is known that a child has a medical condition that makes relapses likely, the employee is entitled to reasonable time off work to make longer-term arrangements for care. Where the line should be drawn is a matter to be decided on the facts of each case, with the foreseeability of the absence being key.

In determining what is a "reasonable" amount of time off for dependants, disruption or inconvenience to the employer caused by the employee's absence is not a relevant factor. Applying these principles to this case, the tribunal concluded that, taking all the circumstances into account, the claimant in this case had not taken an unreasonable amount of time off under s.57A of the Employment Rights Act 1996. 

The tribunal accepted that Ms Naisbett had not suffered any financial loss, but found that the written warning was a detriment because it could be taken into account in the future, for example if the claimant was up for promotion. The tribunal awarded £1,000 to Ms Naisbett for the detriment.

Ugandan anti-gay legislation leads Buckingham University to suspend degree validation

The University of Buckingham has suspended validation of degrees at Victoria University in Kampala, Uganda following increasing concern over proposed Ugandan legislation increasing the penalties for those convicted of homosexual acts – up to life imprisonment in some cases.

Buckingham stated that there was concern ‘in particular [over] the constraints on freedom of speech in this area’. Times Higher Education reported that Alistair Alcock, deputy vice-chancellor at Buckingham, said: ‘we're getting to the position [in Uganda] where questioning whether there should be such legislation gets impossible.’

Recycling Hatred

The European Network Against Racism has launched Episode 1 of its Recycling Hatred series: Are migrants second-class human beings in Europe?
Coming soon: Episode 2, Apartheid practices in Europe?

Male student underrepresentation a priority for BIS

The Department for Business, Innovation and Skills (BIS) has written to the Higher Education Funding Council for England (HEFCE), which oversees and funds universities, outlining funding allocations and setting priorities for HEFCE for 2013-14.

Equality and diversity is given as a priority in the letter, which highlights the following challenges that ‘the sector and HEFCE need to address’:

  • lower percentage of men in the student population
  • lower attainment rates of black and minority ethnic (BME) students
  • insufficient diversity of institutional governing bodies
  • relatively low proportions of women, BME and disabled people in senior management positions

In the letter, David Willetts (Minister for universities and science) and Vince Cable (Business secretary) go on to say that ‘it is essential that universities continue to address these long standing issues and we look to the council to continue work with the sector.

Top 100 gay-friendly employers

Six universities and a further education college have been named in Stonewall’s top 100 gay-friendly employers:
  • University of Cambridge (11)
  • Liverpool John Moores University (28)
  • Newham College of Further Education (32)
  • University of the West of England (45)
  • University College London (53)
  • Cardiff University (55)
  • University of Liverpool (58)

A number of other higher education institutions achieved places or improved their ratings in the index this year, which currently has 376 participating employers.

Stonewall Top 100 Employers 2013, is the definitive list of Britain's most gay-friendly workplaces. The rankings showcase the achievements of employers submitting to the Workplace Equality Index.

Other employers highlighted in the top-20 include:
  • Accenture
  • Gentoo
  • The Co-operative
  • Nottinghamshire Healthcare NHS Trust
  • Home Office
  • Ernst & Young
  • Barclays
  • IBM
  • Simmons & Simmons
  • Metropolitan
  • Environment Agency for England and Wales
  • University of Cambridge
  • Goldman Sachs
  • Lloyds Banking Group
  • Brighton & Hove City Council
  • Hampshire Constabulary
  • North Wales Police
  • South Wales Police
  • Baker & McKenzie LLP
  • Leicestershire County Council

Public Sector Equality Duties: EHRC explains specific duty regulations

The Equality and Human Rights Commission has published technical guidance on the public sector equality duty for England, Scotland and Wales. The guidance explains the aims of the PSED of the Equality Act 2010, the specific duties’ regulations and provides practical approaches to complying with the duty.

The guide isn’t a statutory code of practice, but it can still be used as evidence in legal proceedings. Public sector organisations will need to justify why they haven’t followed the guidance should a discrimination claim be made against them.

For further information see: Equality Act technical guidance


No comments:

Post a Comment