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Add 10 per cent to discrimination compensation awards?

From April 2013, as a result of the Court of Appeal case Simmons v. Castle, there was a 10 per cent increase in general damages for non-monetary losses. This was the Court of Appeal’s implementation of one of the Jackson reforms, namely the recommendation from Lord Justice Jackson that there should be such an uplift in order to help claimants meet the additional costs and risks as a result of his other recommendation to abolish recoverability of conditional fee agreement success fees and after-the-event insurance premiums.

Up until De Souza v. Vinci Construction (UK) Ltd it was not clear whether such an uplift should apply to employment tribunal cases, given that the rationale for the uplift does not apply in the Employment Tribunal. However, employers should take note that the Court of Appeal yesterday decided in De Souza that such an uplift should indeed apply in the Employment Tribunal. The Court noted that s124(6) of the Equality Act 2010 requires that compensation awarded in the County Court and the Tribunals should be consistent. Therefore, compensation for employment discrimination should be the same as that which could be awarded for a non-employment discrimination claim (e.g. discrimination in an educational context) in the County Court.

The Court of Appeal provided some guidance in De Souza as to how the uplift should be applied. Unfortunately it does not appear that it is always as simple as adding 10 per cent. Notably the court stated that in relation to psychiatric injury, the current Judicial College Guidelines already incorporate the 10 per cent uplift, so there would be no change in this regard. However, in relation to injury to feelings the position is more complicated. The Vento bands of compensation for injury to feelings could have a 10 per cent uplift applied to them. However, we will not have any certainty until new bands are published (the Court of Appeal suggested that the President of the Employment Appeal Tribunal publish guidance setting out new bands for clarity, given that the bands were recently updated to reflect inflationary changes).

Add 10 per cent to discrimination compensation awards?

Older and wiser?

After a call from Andy Briggs, the government’s champion for older workers to increase the number of mature workers by 12% by 2022, a group of businesses: Aviva, Atos, Barclays, the Co-operative Group, Home Instead Senior Care, the Financial Services Compensation Scheme, Mercer and Walgreens Boots Alliance, have publically committed to tackling a potential skills gap by recruiting more individuals over 50 years old. Both transparency and target setting are quite fashionable at present following gender pay reporting. However, whether there will be any real development in this area remains to be seen. With Brexit on the horizon, and uncertainty about any restrictions on free movement, the pool of home-grown talent in their 50’s and older should sensibly be considered. Notwithstanding this, there is some tension between this drive and the March 2017 Advocate General’s opinion in the European case of Fries v. Lufthansa CityLine GmbH C-190/16 that an age limit of 65 imposed on EU commercial pilots is not discriminatory. In that case the Advocate General felt that the age limit was both appropriate and necessary to achieve the aim of air traffic safety. He said that there could hardly be any question that capability declined with age. For many working in non safety critical areas employers should be able to manage capability issues by pro-actively applying their capability processes at an early stage.

Older and wiser?

Sisters doing it for themselves?

The world of work is changing. According to a combined study by Oxford Ecomonics and the online retailer notonthehighstreet.com, female entrepreneurs are leading the way in shunning normal working hours. Many have set up their own businesses in an attempt to juggle home and work commitments. They enjoy having flexibility to juggle home and work life, without reverting to part time work and a consequent reduction in their finances. Employers are advised to think about how they can adapt to changing work habits to recruit and retain the best talent.

The full report can be found here http://www.notonthehighstreetpresscentre.com/wp-content/uploads/Noths_Report_Release_London.pdf

Sisters doing it for themselves?

Transparency: Business champion calls for the publication of age data

Transparency seems to be the goal. The gender pay gap reporting obligations came into force on 6 April 2017. The Liberal Democrats have called for mandatory reporting on ethnicity pay gap. Now, Andy Briggs, the Government’s business champion for older workers, has called for organisations to publish age data, and to sign up to a “Commit & Publish” pledge to secure at least a million more employees over the age of 50 in the workplace by 2022. This is a target increase of 12 per cent and is proposed in response to an apparent skills gap in the economy.

A number of employers have already agreed to the pledge, including Aviva, Atos, Barclays and the Cooperative Group.

Employers should start to consider the logistics of wider data collection and analysis obligations, the potential reputational and legal risks of failing to report, and any associated litigation risks of analysis exposing a wide pay gap or statistics highlighting a skewed workforce in terms of age.

Transparency: Business champion calls for the publication of age data

Mental Health and the Equality Act

It’s a well known fact that mental health issues are capable of constituting a disability for the purposes of the Equality Act 2010 (the Act). However, to fall under the current definition of disability, the condition must have a “long-term” effect on the individual’s normal day-to-day activities. The Act provides that a condition will be regarded as long term if it has lasted, or is likely to last, for at least 12 months.

Accordingly, short term mental health issues, including conditions such as stress, anxiety and depression may not be covered by the Act and employees can find themselves without the layer of protection that the Act provides, including an obligation on the employer to make reasonable adjustments.

With statistics suggesting that 1 in 4 people in the UK will experience mental health problems each year, the Government is seeking to ensure that mental health issues are treated equally to physical impairments.

Last week, Health Secretary, Jeremy Hunt, suggested that, if elected, the Conservatives would amend the Act. Specifically, they would remove the requirement that to qualify for employment protection against discrimination on grounds of mental health an individual must have had the condition for a period of 12 months or more.

Given the prevalence of mental health issues, this announcement could be concerning for employers. Indeed, it is not unusual for employees undergoing a disciplinary or performance management process to be signed off due to stress, and the proposed changes could significantly affect the way in which employers will need to manage those employees. In light of the impact on businesses, notwithstanding the commitment from Mr Hunt, the Government would be likely to consult on any proposed changes before bringing them into effect.

Mental Health and the Equality Act

Multiple choice test = indirect disability discrimination

Multiple choice tests are commonplace in recruitment processes and are a relatively easy way for employers to whittle down numbers, especially where there are large numbers of applicants. However the case below highlights the potential dangers of such tests.

In Government Legal Service v. Brookes the claimant, who has Asperger’s Syndrome, applied to the Government Legal Service (GLS) for the position of trainee solicitor. The first stage in the recruitment process was to sit a situational judgement test (SJT), which asks a series of multiple choice questions and is aimed at testing candidates’ ability to make effective decisions. Candidates need to achieve a certain score to move on to the next stage. Asperger’s tends to result in difficulties in social interaction and non-verbal communication and can cause difficulties in imaginative and counterfactual reasoning in hypothetical scenarios. As a result of this the applicant requested that she be able to provide short narrative answers to the questions in the SJT, rather than have to select from multiple choices. GLS refused this adjustment, stating that the multiple choice layout on a computer was the most cost-effective way of testing candidates and also removed human error from marking. Instead, GLS said that she could take the test without a time limit. The claimant took the test and narrowly missed the score which would have enabled her to proceed to the next stage. She subsequently brought claims of indirect disability discrimination and of failure to make reasonable adjustments.

The Employment Appeals Tribunal (EAT), upholding the Employment Tribunal’s (ET) decision, refused GLS’ appeal and held that the claimant had been subjected to indirect disability discrimination and discrimination because of something arising in consequence of her disability. It also found that GLS had failed to provide reasonable adjustments. The main points that the ET and the EAT made are as follows:

  • The provision, criterion or practice (PCP) of requiring all applicants to take and pass the SJT put people with Asperger’s at a particular disadvantage. It also put the claimant herself at a disadvantage.
  • There was no alternative explanation put forward by GLS as to why the claimant had failed the test.
  • There was a legitimate aim (testing competency of potential trainees); however, as there was a less discriminatory way of achieving the aim (i.e. letting the claimant provide short narrative answers as she had requested), the means of achieving that aim were not proportionate.

The claimant was awarded compensation (the relatively low amount of £860) and the ET recommended that GLS (1) apologise in writing and (2) review its recruitment procedures in relation to people with disabilities. This of course does not account for the impact of the reputational damage caused by the publicity surrounding this case.

This case is a good reminder that, if you are an employer that uses testing in your recruitment process, care needs to be taken to ensure that the method of testing does not disadvantage applicants with disabilities and that reasonable adjustments are considered and implemented wherever possible.

Multiple choice test = indirect disability discrimination

Has the Court of Justice of the European Union opened the door for employers to discriminate against employees who wear religious dress?

Have the recent Court of Justice of the European Union (CJEU) cases of C-157/15 Achbita, Centrum voor Gelijkheid van kansen en voor rascismebestrijding v. G4S Secure Solutions and C-188/15 Bougnaoui and Association de défense des droits de l’homme (ADDH) v. Micropole Univers opened the door for employers to discriminate against employees who wear religious dress?

Read our full article on HR Zone at: http://www.hrzone.com/perform/business/do-recent-legal-decisions-mean-employers-can-discriminate-on-the-basis-of-religious

Has the Court of Justice of the European Union opened the door for employers to discriminate against employees who wear religious dress?

Safeguarding mental health: essential for your construction workers, good for your business

The UK’s mental health is currently under scrutiny with high profile dignitaries, businessmen and organisations all helping to raise awareness of the problems it can cause in the workplace. Many campaigners come from the construction industry – an industry not renowned for its workers’ empathy and compassion. Like diversity in the construction industry, which we commented on last month, mental health has, traditionally, been one of those topics everyone avoids both on and off site. But this is not a new topic for construction: back in 2014, Building considered why talking about mental health is taboo in construction. Building focused on the hidden health and safety risks that mental health problems pose in the workplace which can be just as serious a threat to workers as physical injuries and fatalities.

Click here for the full article from our Construction team: https://www.dentons.com/en/insights/articles/2017/march/15/safeguarding-mental-health-essential-for-your-construction-workers-good-for-your-business

 

Safeguarding mental health: essential for your construction workers, good for your business

The European Court of Justice (ECJ) and the banning of headscarves in the workplace

Two highly anticipated cases involving the legality of banning headscarves in the workplace were decided by the ECJ this week.

Achbita and anor v. G4S Secure Solutions NV (Case C-157/15) involved a company that provided security, guarding and reception services. The employee handbook stated that employees were not permitted to wear any religious, political or philosophical symbols while on duty. An employee, after three years of working for the company, decided that she wanted to start wearing a headscarf. The employee was eventually dismissed for refusing to remove the headscarf.

Bougnaoui and anor v. Micropole SA (Case C-188/15) involved an IT engineer who was told by her employer that she would not be able to wear her headscarf at all times. There was not, however, a blanket prohibition on the wearing of visible signs of political, philosophical or religious belief. The employee went on a site visit and wore a headscarf. The customer complained to the company about the fact that she had worn a headscarf and requested that she did not do so in the future. The company raised this issue with the employee; however, the employee refused to comply with the customer’s request. She was then dismissed.

The ECJ held:

  • In relation to a blanket prohibition:
    • that a company rule prohibiting the wearing of visible signs of political, philosophical or religious belief without distinction is not directly discriminatory;
    • that such a blanket prohibition may give rise to indirect discrimination but this may be objectively justified by an employer’s policy of neutrality; and
    • that the policy of neutrality was an objective justification only if it applied solely to customer-facing roles.
  • Where there is no blanket prohibition
    • if in response to a customer complaint about the wearing of a headscarf an employer bans the wearing of headscarves, this will be discrimination; and
    • such discrimination will not be capable of being justified on the basis of a “genuine and determining occupational requirement” under Article 4 of the EU Equal Treatment Framework Directive.

There has been much press commentary on these cases. This has included criticism that these cases could cause confusion as to which religious symbols can be worn at work, particularly when the judgment is contrasted with findings in the European Court of Human Rights that allowed the wearing of crosses at work. An additional complexity for the UK is that, with Brexit looming, the status of such case law in the longer term is uncertain. However, what is clear is that these cases highlight the need for companies to carefully consider their approach to the wearing of visible signs of political, philosophical or religious beliefs and the need to ensure that any polices they apply that restrict such wearing are strictly necessary. Clearly a balance needs to be struck between employees’ religious freedoms and legitimate business aims.

 

The European Court of Justice (ECJ) and the banning of headscarves in the workplace

The Great Divide

With reporting obligations due to come into effect from 6 April 2017, the gender pay gap debate has taken centre stage over the past year. With the UK gender pay gap still sitting at over 18 per cent, it is unsurprising that this has been the focus of political and media attention. The purpose of the regulations is not just to force employers to mechanically calculate their pay and bonus gaps, but also to encourage employers to look inwards to identify why any gaps are arising and what steps can be taken to achieve parity. Considering the business case for closing the gender pay gap is tantamount to the success of this latest government initiative.

But the gender gap is not the only gap which affects our productivity in the UK. A government backed review has found that helping black and minority ethnic (BME) people to progress in their careers at the same rate as their white counterparts could add £24bn to the UK economy each year (a boost to GDP of 1.3 per cent).

The report by Baroness McGregor-Smith, who became the first Asian woman to run a FTSE 250 company when she took over at Mitie in 2007, found that people from BME backgrounds were still often disadvantaged at work. Whilst the Baroness acknowledged that this is still in part down to overt race discrimination, she said, for the most part, the differential treatment is actually down to unconscious bias. She also noted that the UK has a structural, historical bias that favours certain individuals.

The review found that employment rates amongst people from BME backgrounds were 12 per cent lower than for white counterparts. It also found that just six per cent reached top-level management positions. But this isn’t new. A report by the TUC in February last year identified that staff from all ethnic minority backgrounds, qualified to degree level, faced a 10 per cent pay deficit in comparison to their white counterparts, with the figure rising to 17 per cent for those with A-levels only.

Of course the reasons for the gap are not straightforward. However, Frances O’Grady, TUC General Secretary, stated that “this is not just about education, but about the systemic disadvantages ethnic minority workers face in the UK”. A study by the Institute for Social and Economic Research at the University of Essex found British ethnic minority graduates were between five and 15 per cent less likely to be employed six months after graduation than their white peers at the same institutions.

One of the main recommendations of the Baroness’ report is legislation to make firms with more than 50 workers publish a breakdown of their workforce by race and by how much they are paid. She suggested that firms should draw up five-year diversity targets and nominate a board member to deliver them. She also noted that she wants to see diversity as part of public procurement guidelines.

Government ministers have been quick to respond in support of the general recommendations of the report but they have ruled out introducing new legislation. Instead, Business Minister, Margot James, has asserted that “the best method is a business-led, voluntary approach and not legislation as a way of bringing about lasting change.” This recommendation is not however supported by the history of gender pay gap reporting.

The 2010-2015 coalition government initially decided to introduce gender pay reporting on a voluntary basis, in the “Think, Act, Report” scheme. Whilst 200 firms signed up to the initiative’s principles, only a handful actually published their gender pay gap statistics. With pressure mounting on the government, the then Prime Minister, David Cameron, announced that the government would “end the gender pay gap in a generation”; a bold statement and one that he could only dream of achieving if it was specifically legislated for. Here’s hoping the new regulations achieve that honourable goal.

But the question is, in light of the gender pay gap experience, can we expect new legislation providing for race/ethnicity pay gap reporting? In the medium term at least it seems likely. By that point, employers will hopefully have developed the infrastructure that will mean that calculating these gaps and reporting on them should not be too much of an onerous task. However, employers should ideally be taking informal steps to assess their race/ethnicity pay gap now and should start to consider initiatives that they might take to close the gap within their workforce. That way, they can be ahead of the curve if and when race/ethnicity pay gap reporting obligations do come into force.

The Great Divide