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Timing and permission to amend an ET1

In the recent case of Galilee v Commissioner of Police for the Metropolis the EAT held that the doctrine of ‘relation back’, whereby amendments take effect from the date of the original document which it amended, does not apply in the tribunal.

The case concerned a claim for unfair dismissal and disability discrimination. The Claimant later sought to amend the ET1 to include additional accounts of disability discrimination which occurred prior to the dismissal.

In the first instance the tribunal found that these additional accounts had been made out of time and was not persuaded that time should be extended on a ‘just and equitable’ basis. Further, the tribunal was concerned that the Respondent would be deprived of its jurisdictional defence should permission be granted to amend the ET1.

The Claimant appealed the tribunal’s decision and the appeal was allowed by the EAT. The EAT held that the doctrine of ‘relation back’ does not apply in the tribunal and the amended claim takes effect from the date when permission is granted as opposed to the date on which the original claim was brought.

Therefore, granting permission to the Claimant to amend the ET1 does not deprive the Respondent of the right to argue that the additional accounts are made out of time. Further, it is not necessary for a tribunal to determine if a claim is out of time when deciding to grant permission to amend the ET1, other than in clear cases. The tribunal can grant permission to amend subject to the time point being decided at a later stage.

Employers should be aware that employees may be able to amend ET1s to add additional claims even where such claims are made out of time. Tribunals are not required to determine the time point when such applications are made but a timebar argument can be made at a later date.

Timing and permission to amend an ET1

Dress Codes in the Workplace

Headlines on dress codes are becoming more frequent and certainly catch the eye with the BBC’s “Can an employer demand that you go to work naked?” being no exception! The question raises a fair point – to what extent can employers dictate what its workforce wear to work?

Earlier this year, Parliament issued a joint report, prepared by the Petitions Committee and the Women and Equalities Committee, titled “High heels and workplace dress codes”. Following the Government’s response in April, we were expecting detailed guidance from the government in July. This guidance has not yet been published but is expected to cover the more “controversial” requirements including high heels, make-up, manicures, hair, hosiery, opacity of workwear, skirt length and low-fronted or unbuttoned tops.

Until further guidance is published, employers will need to bear in mind recent case law and the heightened risk of having a dress code challenged on not only grounds of sex discrimination but also on grounds of the other protected characteristics in the Equality Act. Religion or belief is one where employers should be particularly cautious, with recent case law considering the wearing of religious symbols and headscarves. Findings from these cases included that a policy can be justified on grounds of health and safety but portraying a consistent image for the business or meeting a customer’s requests do not provide justification of dress code requirements.

We don’t know yet what the scale of the financial penalties (if any) will be for employers, but until any further guidance is issued, we recommend erring on the side of caution and reviewing dress code policies in detail to ensure they cannot be said to be discriminatory or oppressive in any way. Employers are encouraged to consult with their employees and be flexible where possible.

In short, an employer cannot dictate what an employee wears to work. They can, however, put in place a balanced policy, which applies equally to men and women and which does not subject a particular group to a particular disadvantage. Employers should note that dress codes can be different for individual employees, depending on their circumstances, and that this may be necessary where strict policies are in place.

 

Dress Codes in the Workplace

Risk assessments for breastfeeding mothers

The European Court of Justice (CJEU) has held, in the recent case of Otero Ramos v Servicio Galego de Saude, that failure to conduct an appropriate risk assessment for a breastfeeding employee amounts to sex discrimination.

The employee in this case was an accident and emergency nurse who had made a request for an adjustment to her working pattern on account of her breastfeeding. Her concerns included the complex shift rotation system, exposure to ionising radiation, healthcare-associated infections and stress. She requested an adjusted shift pattern and preventative measures to be implemented. Her employer issued a report stating that her work did not pose any risk to her breastfeeding her child and rejected her request for an adjustment to her working conditions.

The employee filed a claim for sex discrimination against her employer, alleging that the risk assessment carried out by her employer did not comply with the requirements of EU law which provides measures to improve health and safety for pregnant and breastfeeding workers. The CJEU found that the employer had failed to perform an individual assessment of the employee’s circumstances, as required under the legislation, and rather it had conducted an assessment of the employee’s role as an accident and emergency nurse.

Accordingly, the CJEU held that failure to properly assess the risk posed by the work of a breastfeeding worker in accordance with the requirements of EU law must be regarded as less favourable treatment and constitutes direct sex discrimination.

Risk assessments for breastfeeding mothers

Sexual harassment in the workplace

The recent allegations against US film producer Harvey Weinstein have brought the issue of sexual harassment at work into the global spotlight with an overwhelming number of women across the globe sharing their experiences of inappropriate treatment at the hands of their employers. This has prompted discussion of the obstacles faced by women trying to develop their careers. It is becoming clear that in many sectors there is a culture in the workplace of ignoring or trivialising sexual harassment.

A recent BBC survey, commissioned in the wake of the Weinstein allegations, has found that half of the women interviewed had experienced sexual harassment at work or place of study. The harassment ranged from inappropriate comments to sexual assault with 30% of the women being targeted by a boss or senior manager.

What has emerged over the recent weeks is that simply having a sexual harassment policy in place is not enough to address such a prolific problem in the workplace. Policies will only be effective if they are “lived” and there is a culture that does not ignore the behaviour the policy is designed to prevent. Perhaps now is the time for a shift in emphasis from attempting to avoid a harassment claim, to preventing the harassment occurring in the first instance.

Sexual harassment in the workplace

Greek government’s imposition of height restrictions on its police force falls short of equal treatment

In the recent case of Ypourgos Ethnikis Pedias kai Thriskevmaton v. Kalliri, the European Court of Justice (ECJ) held that the requirement for candidates for the Greek police academy to be at least 170cm tall amounted to indirect sex discrimination which could not be objectively justified.
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Greek government’s imposition of height restrictions on its police force falls short of equal treatment

Supreme Court rules that embassy staff are not excluded by state immunity

In the recent case of Benkharbouche v. Secretary of State for Foreign & Commonwealth Affairs & Anor the Supreme Court agreed with the EAT and the Court of Appeal and unanimously held that sections 4(2)(b) and 16(1)(a) of the State Immunity Act 1978 (SIA) cannot protect embassies from Employment Tribunal claims brought by domestic staff in the UK.
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Supreme Court rules that embassy staff are not excluded by state immunity

Court of appeal rules that gender segregation at school amounts to unlawful discrimination

In the recent case of HMCI v. The Interim Executive Board of Al-Hijrah School, the Court of Appeal overturned the High Court's finding that a school's complete gender segregation of pupils from year five onwards was not direct sex discrimination.
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Court of appeal rules that gender segregation at school amounts to unlawful discrimination

Landmark legal battle that could prevent women earning less than men in the UK

The latest hearing in the UK's largest ever private sector equal pay claim is due to kick off today, in a case that could eventually see around 15,000 predominantly female Asda workers recovering well over £100m in pay.
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Landmark legal battle that could prevent women earning less than men in the UK

Ethnicity Facts and Figures

On Tuesday 10 October 2017, the Government launched a new website – Ethnicity Facts and Figures – the aim of which is to challenge society to “explain or change” disparities in how people from different ethnic backgrounds are treated.
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Ethnicity Facts and Figures

Choice words

The case of Ms Carolina Gomes v. Henworth Limited t/a Winkworth Estate Agents & anor. serves as a useful reminder to be careful when selecting your choice of words when talking to employees.
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Choice words