The latest news on employment law matters from Richard Gvero.
Interim Relief – Steer v Stormsure
Victimisation – Chalmers v Airpoint
Furlough – updated guidance – Coronavirus Job Retention Scheme
Indirect discrimination – Cummings v British Airways
Pregnancy discrimination – Devon and Cornwall Police v Town
Joint Senior Partner, Head of Employment and Commercial
Steer v Stormsure
Interim relief is a powerful employee remedy. Section 128 of the Employment Rights Act 1996 sets out the limited circumstances in which it can be sought: for dismissals relating to trade union or health and safety representative activities, and whistleblowing cases. If an employee shows that there is a ‘pretty good chance’ that they will win their claim, the employment tribunal can make an order for their reinstatement (to their old job), reengagement (to an equivalent role) or simply for their contract to continue. Essentially, interim relief reverses the dismissal pending the final hearing. In what may turn out to be a landmark case, the Employment Appeal Tribunal has looked at whether this remedy should also be available in discrimination cases.
In Steer v Stormsure, the employee had been employed for only a few months when she raised allegations of sexual harassment against a colleague. She lodged a grievance. She also asked to work from home to safeguard herself from harassment. The employer reluctantly agreed but asked her to install monitoring software onto her computer, which the employee found oppressive. She alleged that her working hours were then reduced to 60 per cent. She claimed that the reduction in hours was an express or constructive dismissal that amounted to sex discrimination or victimisation. She brought a claim for discrimination under the Equality Act 2010 and requested interim relief in relation to her discriminatory dismissal.
The employment tribunal said it did not have the jurisdiction to grant interim relief in discrimination cases. The employee appealed to the EAT. The EAT said the difference in protection for discrimination cases breached the European Convention on Human Rights (ECHR) – article 14 on the prohibition of discrimination and article 6 on the right to a fair trial. The difference in remedy between whistleblowing and discrimination claims was not justifiable. However, they did not have the power to make a ‘declaration of incompatibility’ with section 3 of the Human Rights Act 1998 (which says that UK legislation must be read in a way which is compatible with the ECHR). Nor were they prepared to interpret the Equality Act 2010 in such a way as to extend interim relief to discrimination cases. As a result, they dismissed the appeal but granted permission for the employee to appeal to the Court of Appeal which does have the power to rule on the incompatibility point.
This is an important decision for employers. If the employee wins her appeal, a brand-new remedy will be available to employees in discrimination cases. Brexit will not affect the outcome because the UK will continue to sign up to the ECHR. Currently, interim relief is rarely sought and even more rarely won due to its very limited application. If the remedy extends to discrimination claims, there could be a deluge, especially at a time where there are significant delays in the employment tribunal process due to Covid-19. Employers should not panic though. For interim relief to be granted, an employee needs to have a ‘pretty good chance’ of winning their claim. This is no small hurdle, and many will fail to get over it.
Chalmers v Airpoint
An employee is victimised when an employer treats them badly for raising allegations of discrimination. The discrimination complaints are called ‘protected acts’, because the employee is protected if they raise them. In Chalmers v Airpoint, the EAT has looked at whether an employee saying something ‘may be’ discrimination is enough to qualify as a protected act.
The employee emailed her employer saying that their actions – in arranging a Christmas event for a date when she could not attend – ‘may amount to discrimination’. In the same email, she also complained that her manager was unapproachable, aggressive and unhelpful. The tribunal found that the party arrangements were not an act of discrimination. In addition, the employee’s email was not a protected act because it didn’t contain an allegation that someone had contravened the Equality Act 2010. They considered the employee to be articulate and well-educated. They also noted the specific lack of reference to ‘sex discrimination’. As a business support manager, the employee carried out some HR functions for the company so had insight into discrimination issues. The tribunal therefore felt it was surprising that she was equivocal about discrimination complaints when she had been so clear about other issues – if she had wanted to raise discrimination complaints, she would have done.
The EAT said the tribunal had been entitled to come to this conclusion. They noted the tribunal’s reasoning and confirmed they had been entitled to conclude that this email was not a discrimination complaint which qualified as a protected act. The EAT said that the tribunal had considered whether the lack of the word ‘sex’ (in relation to discrimination) and use of the word ‘may’ were due to the employee’s ‘lack of facility’ with words or ignorance about the concept of sex discrimination. They found that if she had wanted to raise a sex discrimination complaint, she would have done. The EAT said those findings were not perverse on the facts.
This case does not mean that equivocal language will never be enough to turn a complaint into a protected act. The facts in this case were very specific – a well-educated employee, familiar with HR processes, and someone who had complained in very clear terms about other matters. On that basis, the tribunal concluded that she would have complained in clear terms had she intended to. Other employees may be understandably less informed or be less direct and have a lower hurdle to clear when raising discrimination complaints. Care must always be taken in relation to any correspondence which cites discrimination. It’s probably safer to assume it does qualify as a protected act and proceed cautiously.
Furlough – updated guidance
Coronavirus Job Retention Scheme
The government has updated its advice in relation to the Coronavirus Job Retention Scheme to confirm that employees can be furloughed if they are unable to work some or all of their hours due to caring responsibilities resulting from Covid-19. The guidance says that ‘caring responsibilities’ includes caring for children who are at home because schools/childcare facilities have shut or caring for a vulnerable person in the household.
The change in advice follows requests from the TUC and opposition MPs for the government to provide more support for working parents during the third lockdown. The government rejected calls for parents to be given the right to demand furlough, though the new guidance creates more flexibility for both parents and employers. It is almost impossible to do a decent day’s work alongside home-schooling children. The option to furlough might be attractive to some employers who are able to cover the work in another way. This will not always be possible though and sensitive discussions will be necessary with employees who can’t be furloughed to see what other support or assistance may help them to juggle their responsibilities. Redistributing some work, changing working hours or being more flexible on deadlines can all help parents who are trying to juggle during the normal working day. Stressed, overstretched employees are not efficient or productive workers. In these strange times, what works best for employees will often be the best thing for the business too.
Cummings v British Airways
Indirect discrimination arises when an employer applies a policy to everyone which puts people who share a protected characteristic (such as race or sex) at a ‘particular disadvantage’. The policy must also put the employee in question at that disadvantage. It involves a comparative exercise: showing that one group is disadvantaged when compared to another. These groups are often referred to as the ‘pools for comparison’. The pools need to include all the workers affected by the policy but exclude those who are not. In Cummings v British Airways, the EAT examined who should go into these pools in an indirect sex discrimination claim involving childcare.
British Airways had a policy that crew members who took parental leave would have one rest day removed for every three days’ parental leave taken in a monthly roster. The policy was applied to the employee who brought an employment tribunal claim. The employment tribunal found that the policy did not put women at a particular disadvantage when compared to men. The pools for comparison were men with childcare responsibilities and women with childcare responsibilities within the workforce. Since 100 per cent of both groups suffered the same disadvantage when they took parental leave, the tribunal said there was no particular disadvantage to women.
The EAT said there was a problem with this reasoning. Not all employees with childcare responsibilities would apply for and take parental leave. This means that not all people with childcare responsibilities in either group – male or female – would be disadvantaged. It had been acknowledged in the Supreme Court case of Essop that women still bear the bulk of childcare responsibilities in society. Of 2500 cabin crew, 69 per cent were women and 31 per cent were men. Of those who took parental leave, 417 were women compared to 92 men. A far greater proportion of female employees (24.2 per cent) took parental leave compared to male employees (11.9 per cent). But what was missing from the evidence was the comparison between the specific number of male and female staff with children of the relevant age, who therefore had ‘childcare responsibilities’. This was an error of law and the matter was sent back to a fresh employment tribunal to consider the following questions:
- Did the policy put staff with childcare responsibilities at a disadvantage;
- Did it put women in that group at a particular disadvantage when compared with men; and
- Was it justified?
This case is a helpful explanation of how the pools for comparison are made up in an indirect discrimination claim. It is a complex analytical exercise with this case showing how eminent lawyers and even judges can get it wrong. It’s worth employers getting early legal advice in relation to allegations of indirect discrimination so that any problematic policies can be weeded out and changed before cases get to court.
Devon and Cornwall Police v Town
Section 18 of the Equality Act 2010 deals with pregnancy and maternity discrimination. An employer discriminates against an employee if they treat her less favourably while she is pregnant or on maternity leave, either because of the pregnancy (or any related illness) or because she has taken maternity leave. This kind of discrimination cannot be justified. The period of protection starts when the employee becomes pregnant and finishes at the end of maternity leave. The Employment Appeal Tribunal has recently looked at whether changing a pregnant employee’s job to remove workplace risks can be considered less favourable treatment.
In Devon and Cornwall Police v Town, the employee was a frontline police officer who worked in the Response Team. When she became pregnant, a risk assessment confirmed that she could safely remain in the Response Team with some adjustments. Instead, the employer applied their generic policy that employees on restricted duties would be transferred to the Crime Management Hub, a back office role. They essentially ignored the risk assessment. The employee did not want to transfer and the transfer affected her mental health and made her ill. She brought claims for pregnancy discrimination and indirect discrimination.
The employment tribunal said the employee had been discriminated against on grounds of pregnancy. The employer had also indirectly discriminated against her by applying the policy on restricted duties because women were more likely to be forcibly transferred due to pregnancy or associated ill health. The employer appealed, saying that a policy designed to protect someone from risk could not be ‘unfavourable’ treatment. They also argued that the policy only disadvantaged pregnant women, not women in general. The EAT disagreed. The ‘unfavourable’ treatment was being moved to a job the employee didn’t want and which made her ill, not being ‘removed from danger’. The tribunal had found on the facts that this was unfavourable treatment and that it was because the employee was pregnant. These findings of facts were not perverse so there was no basis for appeal against pregnancy discrimination. For the purposes of an indirect discrimination, the EAT said that it was enough that the policy was more likely to affect women – as a group they were more likely to be subject to the policy due to pregnancy and only women can get pregnant. It wasn’t necessary that all women actually suffered from the disadvantage.
This case shows how important it is for employers to engage with pregnant women about steps that are taken to protect them from work-related risks. In this case, the risk assessment clearly showed that the employee could safely remain in her substantive role. The tribunal noted that any ambitious frontline police officer would consider the move to a non-operational role as a retrograde step. In circumstances where the employee actively wanted to stay in her job, steps to ignore both a risk assessment and her own desires were foolhardy. Protecting women from clear dangers is vital, but this case demonstrates the risks associated with going too far.
Associate Solicitor specialising in Employment law
Joint Senior Partner, Head of Commercial and Head of Employment
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