Blog: Never discuss religion or politics

“Never discuss religion or politics”. This sage advice has been around for at least a century. But in these days of Brexit and Trump, politics seems harder and harder to avoid and religion has got wrapped up in it in a way it hasn’t been – or at least not in the UK – for decades. So what happens when people’s strongly held views on these subjects spill over into work? I’ve teamed up with business psychologist, Caroline Gourlay, to look at both the psychological and the legal aspects of politics and religion at work.

1. What is acceptable debate?

What the psychology says….

Imagine that you and a colleague disagree about whether to take a high risk business opportunity. There is goodwill between you and you both know that you have the best interests of the organisation at heart. Even if you don’t always manage it, you’ll probably try to have an open and good-natured discussion, aiming to understand each other’s perspective.

Now imagine you disagree about Brexit or immigration or any issue on which you hold strong views which reflect your values. The chances of you having a discussion like the one above are slim. We discuss difficult issues; we debate difficult politics. Even when things stay civilised, people generally aim to prove they’re right and the other side is wrong. What the psychology tells is us that the worst possible way to get someone to change their perspective is to tell them how wrong they are.

You may not even be trying to change each other’s minds. It’s not as though you have a joint decision to make. Maybe you just see it as banter, like you might have over rival football teams. But when you insult each other’s teams, you’re actually reinforcing your shared love of the game. When you banter about politics, you emphasise your differences. Once you start calling each other “liberal elite snowflakes” and “racist little Englanders”, you erode your working relationship.

What the law says…..What is acceptable debate?

In legal terms, it’s important to make a distinction between debate which somehow involves ‘protected characteristics’ and that which doesn’t. Whilst rancour over a range of things from support for rival football teams to poor personal hygiene can cause real problems in a workplace, they rarely lend themselves to legal claims. The ‘protected characteristics’ recognised in law are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, sex, sexual orientation and – crucially in this context – religion and belief.

But what sort of ‘religion or belief’ will be protected? More esoteric examples include Wiccan witchcraft, climate change, veganism, the ‘higher purpose’ of public service broadcasting and belief in the sanctity of animal life (in the context of strong opposition to fox-hunting). All of these have either been judged to come within the scope of the regulations or used as examples in official guidance documents.

Of course, the fact that a discussion touches on a protected characteristic does not mean it is automatically discriminatory or unlawful. The fine line between a genuine exchange of views and the sort of critical interrogation which might amount to harassment is hard to draw in the abstract. That said, most of us would probably recognise it when we see it, and Employment Tribunal panels are actually pretty good at policing it.

2. What if you split into two sides?

Whether it’s a political issue like Brexit or a more tangible difference, such as racial or religious divisions, it can feel very uncomfortable if your workplace starts to split into factions.

What the psychology says….

It’s not the fact that there’s difference that matters. Diversity of opinion and experience is generally good for organisations. Felix Spender, a soldier turned professional peacekeeper, has a 7-stage model of conflict, which suggests that a little bit of conflict can be useful for stimulating ideas, competition and creativity. One key way to stop things escalating from constructive conflict to a cold war and beyond is to stop over-identifying with your side.

The stronger the loyalty to your in-group, the more alien the other lot become. And yet, inevitably, you will have things in common – a shared love of chess, rugby or Strictly Come Dancing; even a shared frustration with the IT system is a start. You have to work with these people regardless. You can either see them as one-dimensional – “I can’t have anything in common with him; he reads the Daily Mail/Guardian/Sun” (delete according to prejudice) – or you can look for something, anything, which establishes a human connection.

What the law says…..

Employers have a broad right to impose disciplinary rules in their workplace and to expect instructions to be followed. Therefore, employers may choose to limit discussion more than the general law does, particularly in the run up to a tense event, such as the 2014 Scottish independence referendum or the Brexit referendum last June. Provided those rules don’t infringe general legal principles (for example, it would be discriminatory to try to silence only one side of the debate) employers are entitled to take disciplinary action against those who breach them. Of course, the more wide-ranging the proposed ‘ban’ is, the harder it is to actually enforce.

3. What if there’s just one person on the other side?What if there’s just one person on the other side?

If you’re the only UKIP-voter in an office full of right-on hipsters or vice versa, you probably either have a lot of arguments or keep very quiet.

What the psychology says….

You may have a strong desire to stand up for what you believe in, particularly if it’s based on your religious beliefs or if you’re a liberal. Liberals often feel that saying nothing in the face of sexist, racist or homophobic remarks makes them complicit. As a bleeding heart liberal, I completely get this. But, big but, I guarantee that the main outcome from a response such as “I find that offensive. It’s sexist/ racist/homophobic” will be to reinforce the difference – and the distance – between you. That may be exactly what you want, but you still have to work with these people. And if you want to change attitudes, it’s more likely to happen if people can identify with you. Turn yourself into an ‘out group’ and they’ll become more entrenched in their own in group. Eventually you may be ostracised and the psychology tells us that ostracism is even more damaging to people than bullying.

What the law says…..

‘Odd one out’ cases are perhaps even more likely to give rise to claims of bullying and harassment than ‘faction’ cases. In this blog from 2015 I drew a comparison between a woman who brought a case in 1975 after she was dismissed for sharing her views on the ‘permissive society’ with her more strait-laced colleagues and a current case involving a Christian nursery worker dismissed (unfairly) for sharing her views on the sinfulness of homosexuality. In the first case, it was the ‘loose morals’ of the young employee which set her apart from her colleagues, forty years later it was the old-fashioned conservatism which was out of kilter with the prevailing mood in the workplace, but in each case the ‘odd one out’ paid with her job for having made her controversial views known.

It is rare, however, for conflicts to become disruptive enough for an employer to feel they have no choice but to dismiss. More commonly, the ‘odd one out’ becomes a victim of bullying (or perceived bullying). Although ‘bullying’ itself is not a term with legal meaning, the danger for an employer is that an employee who is singled out may have a discrimination claim for which the employer will most likely be liable. In addition, if the employee leaves as a result of bullying treatment then they could have a potentially valuable constructive unfair dismissal claim, even if the central issue is something which does not amount to a protected belief.

4. What if you all agree?

Suppose that everyone in your hipster design agency voted Remain and hates Trump. There’s no problem then about discussing the latest Trump-outrage or UKIP gaffe round the water cooler, surely?

What the psychology says….

What if you all agree?Whilst it’s very bonding for a group to keep reinforcing their shared values, it can lead to group-think. As Felix’s model suggests, without any kind of difference, it’s easy for complacency to set in. If you exist in a bubble, it can be difficult to consider alternative perspectives or even to recognise that they exist. Pre-referendum, a lot of online commentary from leavers suggested that opinion polls must be skewed because every single person they had spoken to was voting out. On the other side, I notice that the kind of liberals who live by the mantra ‘Never judge a man until you’ve walked a mile in his shoes’ seem reluctant to try on the sensible footwear of a Daily Express-reader. If you all think the same way and listen to no other perspectives, how can you be sure that you understand the views and needs of your customers, suppliers or service users?

What the law says…..

Whilst there is nothing against the law about everyone getting on, the problems that Caroline mentions can, when taken to extremes, lead to legal issues. Organisations which are perceived to be ‘closed’ – whether in terms of race, religion or social outlook can sometimes be targeted by applicants seeking a platform to make a claim, either for monetary gain, or to pursue their own agenda.

The other problem with a monolithic group culture is that it can lead to increasingly extreme comments being tolerated (inevitably in the name of ‘banter’). When looked at in the cold light of an Employment Tribunal that round-robin email describing all Trump voters in vitriolic and ‘colourful’ terms could become a serious embarrassment.

If you’ve found the pychology aspect of this blog interesting, you can find more of Caroline’s blogs here where you will be able to register to receive them.

If Menzies Law didn’t send you this blog directly but you would like to sign up to receive more from us on a regular basis, please register here. Thanks for reading.

 

Joanne Sefton
Barrister

Joanne Sefton, Specialist Employment Lawyer at Menzies Law

Blog: Judges taking centre-stage

Question:  What do Denise Brewster and Fatemad Reshad have in common?

Answer:  Both are very recent beneficiaries of the exercise of judicial control over executive power.

Meaning what, exactly? Well, Fatemad is an Iranian infant who travelled to the US this week to undergo potentially life-saving heart surgery at a Portland hospital. Her planned treatment had been jeopardised by Donald Trump’s executive order on immigration, signed on 27th January and popularly reported as the ‘Muslim ban’.  According to The Independent, a court in Seattle granted a temporary restraining order on the ban, allowing Fatemad to travel to Oregon in time for the operation to take place.

So what about Denise? Well, she challenged a requirement in the Local Government Pension Scheme (Benefits, Membership and Contributions) Regulations (Northern Ireland) 2009 which says that that where a scheme member died leaving behind an unmarried, co-habiting partner, that partner would not receive survivor’s pension benefits unless the member had filled in a benefits nomination form prior to death. The case went all the way to the UK’s Supreme Court, which decided on 9th February that the requirement in the regulation was incompatible with the European Convention on Human Rights and should therefore be set aside.

So both cases involve a challenge based not on the fact that the defendant has done something wrong in law, but a successful challenge to the law itself. It is not argued that a particular legal provision has been broken, misapplied, or even wrongly interpreted – it is argued that it is simply wrong.

Judicial intervention

The USA has a long tradition of the judiciary exercising control over executive decision makers at both State and Presidential level. The idea of the US Supreme Court ‘striking down’ an enacted law is familiar from films and literature, and even non-lawyers outside the USA will have heard of famous decisions such as Roe v Wade on abortion rights and Brown v Board of Education of Topeka on segregation in education. This is one reason why US Supreme Court Justice nominations are intensely political decisions.

By contrast, the curb on executive power in the UK has historically come from the legislature – Parliament. The Prime Minister, or even cabinet, has limited ability to take action (and cannot enact primary legislation) if she cannot carry the will of Parliament. But it’s undeniable that we’re seeing rapid (okay – rapid in constitutional terms!) movement towards both greater judicial scrutiny of executive actions and legislation, and also a greater willingness of the courts to ‘strike it down’ in extreme cases. There are lots of reasons for this and lots of arguments as to whether it’s a trend that will continue to accelerate, or if other factors (particularly our withdrawal from EU) may serve to slow it down.

Employment law is at least as susceptible to this sort of creative judicial challenge as any other area – just look at the seismic changes we’ve seen in relation to holiday pay over the last two or three years. In these ‘interesting times’ you can rely on us to have our ear to the ground about the latest developments, however they arise, and to give you the legal info you need to get on and do your job.

In the meantime, do have a look at that pension scheme and see if your own scheme requires co-habitees to nominate a beneficiary. Denise Brewster’s perseverance is likely to mean changes to many public sector schemes, which have over 12 million members between them. Private sector schemes are not directly effected by the decision, but often have similar clauses.

If you’d like to talk it over, do please give us a call.

 

Joanne Sefton, Specialist Employment Lawyer at Menzies Law

Blog: The Top Five Most Important Employment Law Cases of 2016

No arguments – 2016 has been a seismic year by any standard. Whether you are grieving over David Bowie, still mourning England’s dismal performance in the Euros or contemplating the likely impact of Trump-Brexit on the future of civilisation as we know it, you might be forgiven for not putting employment law at the centre of your seasonal reflections. Never fear, we’re here to help, with our picks for the critical cases of 2016.  Agree or disagree?  We’d love to hear your comments.

In reverse order…

5. Onu v Akwiwu; Taiwo v Olaigbe (Supreme Court)

This was the case of two migrant domestic workers who sought to argue that mistreatment on the basis of their immigration status amounted to race discrimination, such as to be actionable in an Employment Tribunal. Although it rejected their claims, the Supreme Court acknowledged the severity of the treatment they had received, and expressed concern and sympathy about the lack of effective legal recourse. Baroness Hale’s suggestion in the judgment that Parliament may wish to afford a jurisdiction to Employment Tribunals to ‘grant recompense’ to workers who suffer ill-treatment in these circumstances is one which chimes well with the current increase in awareness of modern slavery and other forms of exploitation, albeit perhaps less well with a more general anti-immigrant sentiment.

4. British Gas Trading Ltd v Lock (Court of Appeal)

A decision which said almost nothing – and what it did say was exactly what everyone expected it to. Why important then? Because the Court of Appeal decided that the Working Time Regulations 1998 “can” be interpreted to require results-based commission to be reflected in holiday pay calculations. The decision is both baffling in terms of its logic (as no one reading the Regulations and taking them at face value could ever reach that result) yet also entirely inevitable in view of the line of recent authorities in both the European and UK courts relating to Working Time under EU law. For now, we at least have some clarity. But will the recently-improved holiday pay rights of those earning commission (and overtime) be one casualty of Brexit.  Who knows?

3. Bellman v Northampton Recruitment (High Court)

This case concerned an office Christmas party which some attendees followed up with a late night drink session in a hotel. Following an alcohol-fuelled exchange of words, a Director struck one of the employees, who sustained brain injuries. The High Court had to decide whether the company (and therefore their insurers) were vicariously liable for the assault.

Although, this is not ‘employment law’ in the classic sense, questions of vicarious liability do arise regularly, and a knowledge of the subject should inform many HR policy areas, including those around health & safety, harassment and, yes, Christmas parties and other work-related socialising. The High Court in this case confirmed that the business was not liable. It cited several factors which differentiated the later informal drinks from the party itself. (If the punch had been thrown at the party then the business would have been liable.)  There was a view that the Supreme Court decision in the Mohamud v Morrisons case earlier in the year (concerning an employee attack on a customer) had slightly lowered the threshold for vicarious liability. Bellman seems to show that it will still be hard to make out in a quasi-work scenario, although the decision may itself be appealed.

2. G4S Cash Solutions (UK) Ltd v Powell (Employment Appeal Tribunal)

A disabled employee who was unable to continue in their substantive role was moved to a lower-paid role as a reasonable adjustment to keep them in work. Did the employer in these circumstances have to offer pay protection?

On the facts of this case, yes, pay protection would have been a reasonable adjustment. This is not the outcome that we, nor other commentators, would have predicted. Until now the law seemed fairly clear that whilst an employer might be expected to make costly adjustments, directly increasing the payment to an employee was not something which the courts would consider to be reasonable.  We predict more cases arising from similar circumstances. Will this prove to be a one off, or the start of a trend?

1. Aslam and Others v Uber BV and Others (Employment Tribunal)

This very high-profile piece of litigation has barely got off the starting blocks. The ET decision will undoubtedly be appealed. Therefore we can expect a whole trail of cases dealing with employment status in the so-called ‘gig economy’. Of course, lots of cases about employment status are nothing new. Fifteen years ago it was all builders, then agency workers had a moment in the spotlight. The difference now is the rapid rise in numbers of people in this part of the labour market, and its expansion into new sectors. Can the law anticipate these changes or will we inevitably be playing catch up? How the employment law system copes with this societal change is one of the big stories for the next decade.

Seasons Greetings from Menzies Law - Holly with berriesAnd looking forward…

What are we expecting to see in 2017? As well as potential appeals mentioned above, we know there are important upcoming appeals on equal pay, whistleblowing and indirect discrimination. We also predict an increase in strike litigation, cases involving transgender rights and continued interest in the gender pay gap. So watch this space…

Joanne Sefton, Specialist Employment Lawyer at Menzies Law

Blog: What does ASDA mean for me?

Last month, the Manchester Employment Tribunal handed down its decision in the latest skirmish of the mammoth, on-going, ASDA equal pay battle.

It’s a dense 54-page judgment and the claimants won. BUT this judgment wasn’t determining whether they have been paid unlawfully. It wasn’t even determining whether they did work of equal value to their male comparators. All that is still to come.  All that this particular decision establishes at this stage (assuming it is not overturned on appeal – watch this space) is that female shop workers in the business’s Retail division are permitted to compare their jobs and their pay to male depot workers in ASDA’s Distribution division.

There are complex rules around which male colleagues a female equal pay claimant can compare herself to. It isn’t enough to say that you work for the same employer.  Unless you also work at the same ‘establishment’ (anyone remember the fun and games we had with that word last year in the Woolworths case?), you are only permitted to draw comparisons with men on the same terms and conditions. Or, crucially in this case, terms and conditions derived from a ‘single source’.  The idea of a ‘single source’ is a rather vague European one. This has already been the source of a healthy amount of litigation.

Different divisions of ASDA have their own internal processes for setting employment terms and conditions. But the Employment Tribunal decided that, since ultimate central control sits with the same ASDA Executive Board, that fact was sufficient to take the view that all ASDA employees’ terms of employment come from one source. Tellingly, the judgment observes that if there was unlawful inequality in any employment terms anywhere in ASDA, it would be in the power of the Executive Board to rectify it.  On that basis, it is difficult to think of many ‘same employer’ cases, outside the central government and the NHS, where a ‘single source’ argument would not succeed.

This is a complicated decision, and this blog is not the place to debate its details and nuances. The critically important message is that it widens further the scope of comparison between workers in equal pay claims. This is in line with a history of decisions doing the same thing in a myriad of ways. And it makes it even more likely that claims will be permissible across ‘gender ghettos’. I.e. in occupational segregation situations – think ‘dinner ladies and dustmen’.

In the private sector, as the public sector, work historically done by women has also been low paid. Going beyond that, objectively under-valued (when expert analysis is applied). There’s a long way to go for the ASDA claimants. However, an ultimate victory would potentially impact on the pay of 130,000 Retail sector workers in the business.

As various local authorities have already discovered, allowing ‘gender ghettos’ to persist in your pay structure can be a very costly mistake. We predict it’s a lesson that many in the private sector will be learning the hard way in coming years.

Our Gender Pay Gap service

If you have 250+ employees, we’d love to tell you about our bespoke Gender Pay Gap Audit & Advice service.  Just get in touch and we will be happy to explain how we can support you.

Joanne Sefton, Specialist Employment Lawyer at Menzies Law

Blog: Any ghost employees out there?

Yep, it’s that time of year when thoughts momentarily turn to all things witchy, spooky and pumpkin-related in a last-gasp attempt to stave off the impending tinsel tsunami for a few more precious days. Or does it just feel that way with a five-year-old at home?

Anyway, keeping it seasonal, the recent EAT case of Sandle v Adecco caught my eye, and provided a new spin on the old (roasted) chestnut of ‘ghost’ employees. That is, those tricky individuals who manage to drift off over the horizon without the employment relationship ever really being brought neatly to an end.

As you may know, Ms Sandle was a lawyer who gained a post at BASF plc, the chemicals giant, via Adecco employment agency. She worked in the role for a couple of years and hoped to secure permanent employment. However, a recruitment freeze, combined with performance concerns, led to her assignment being terminated on one month’s notice.

Other than a voicemail message from the local manager, there was no communication between Adecco and Ms Sandle after the assignment ended. Adecco generated a P45, but this was not actually sent to her. Ms Sandle subsequently brought unfair dismissal claims against both BASF and Adecco.

The claim against BASF failed on the basis that she was never its employee. It’s worth remembering that there was a period in the mid-2000s when it seemed that end-users might well be at risk of being found to have agency workers who had become employees (and gained employment rights against them). These developments were over-ridden by legislation and, rather than being employed by no one, agency workers will generally now be expressly employed by the agency.

Her claim against Adecco also failed, although not due to employment status. The ET decided (and the EAT agreed) that Adecco had not communicated any dismissal to Ms Sandle (and nor had she resigned). In those circumstances, there could be no dismissal, and so her employment relationship had continued, albeit in a state of “limbo”. If she had been dismissed, or had resigned and claimed constructive unfair dismissal, then the view of the ET seems to have been that she would likely have had a successful claim (albeit with some big question makes over the level of compensation).

Although not quoted in the Sandle case, as it engaged different legal tests, the decision is in some ways reminiscent of the famous 2013 case of Geys v Société General in which the defendant bank thought they had dismissed the Claimant, but hadn’t in fact managed to do so. That decision raised important questions which remain largely unanswered, including around whether employment could be terminated for the purpose of bringing an unfair dismissal claim, but not for contractual purposes.

Although the headline message from Sandle might be that end-user organisations don’t have too much to worry about, the agency situation is not the only one that can give rise to ‘ghosts’. Another classic is employees on long term sickness absences, and then there are more unusual situations, perhaps involving employees who move abroad.

In order to avoid being ‘tricked’ by any nasty surprises at Halloween or any other time, do have a think about:

  • Making sure that any termination is promptly confirmed in writing. Even where the employee resigns, an acknowledgment letter should set out the effect of the resignation in terms of termination date, notice pay, etc.
  • Where achieving termination on a particular date is critical, either for contractual benefits (particularly bonuses), or for making sure the employee doesn’t accrue qualifying service for an unfair dismissal claim, do get advice on the timings and on exact wording of your correspondence.
  • Keep an eye on the status of any employees who are not active in employment, review their situations as appropriate, and make sure information is not lost in and handovers or business transfers.

 

Joanne Sefton, Specialist Employment Lawyer at Menzies Law

Blog: Make us glow!

We always love to hear success stories from our clients. It’s fantastic when we find out (often via LinkedIn) that one of the businesses we work with has just won an award for bringing catering innovation to the care sector, or successfully completed a massive construction project, or that one of ‘our’ college clients is announcing spectacular exam results. After all, the whole point of our work is to enable your business or organisation to do its stuff as effectively and successfully as possible. When you share your success with us, it gives us a lovely glow of pride – a bit like Great-Auntie Doris on the sherry in the corner of a graduation party.

With that in mind, there was one successful client that I really wanted to let you know about. United World Schools is a UK charity set up to build and run schools where there are none. They’ve grown hugely in the past 7 years, and we’ve helped them take their first steps in employing a UK staff base. They work in Cambodia, Myanmar and Nepal and, to be honest, before I got to know about their work I really wasn’t aware that basic elementary schooling is still not available to 59 million children worldwide. The first United World School opened its doors in 2009, and now they are celebrating passing the milestone of getting 50 schools open (actually 52!) with plans to get to 150 in the next three years. Since 2009 the charity has enrolled over 10,000 children into education. Sustainable funding is based around working with more affluent partner schools in 16 different countries, giving children the chance to develop a real connection with those in very different circumstances. Every time I work with them I’m humbled by all the fantastic stuff they do.

If you want to check out their website, it’s here http://www.unitedworldschools.org/. If your organisation has something to shout about then please do let us know on LinkedIn or via the @MenziesLaw twitter account.  Go on – make us glow. (‘Sherry? Don’t mind if I do…’)

United World Schools  United World Schools United World Schools

Joanne Sefton, Specialist Employment Lawyer at Menzies Law

Blog: The Dress Code Strikes Back

A couple of months ago I blogged about Nicola Thorp, the agency receptionist who left a placement at PWC rather than wear high heels. Last week (whilst desperately seeking some news that wasn’t related to Brexit or party leadership contests) I came across an article in the Scottish press about Erin Sandilands, an 18 year-old waitress from Ayrshire who has just been awarded £3,500 for sex discrimination.

In contrast to Ms Thorp’s case, the dress code for Cecchini’s Bistro was not overtly problematic – she was required to wear a black skirt or trousers and a black shirt. However, despite complying with the code, she told the Employment Tribunal that she had been ‘taken aside’ by a manager and asked to start wearing a skirt instead of trousers, to wear her hair down and to use more make-up “for the punters.” Having questioned this, she received a call to say that she would not be offered any more shifts; a move that was contractually legitimate given her zero-hours contract.

Tellingly, the article in The Herald reveals that her father’s partner is an employment lawyer. I would hazard a guess that the teenager’s family probably also supported her in paying the £1,200 it would have cost her to bring the Tribunal claim, although Cecchini’s would have been ordered to reimburse this as part of the judgment against them. Furthermore, it’s not everyone who can afford to take the risk of losing their income to stand up for their principles. Would she have felt able to object – never mind bring her claim – as a single mum?

For anyone who knows a bit about discrimination law and has ever thought ‘but how do they get away with that?’ in relation to the everyday sexism (and other forms of discrimination) that we often see or hear about, there are a few observations that I’d like to share.

  1. Our anti-discrimination laws are ‘fit for purpose’.  Over 40 years we have evolved a regime that can provide redress for subtle and not-so-subtle discrimination, along with a talented cohort of judges and lay ET members who apply it with common sense and healthy scepticism. Of course, they don’t get it right all of the time but, taken as a whole, it’s a Very Good Thing.
  2. In contrast, access to that legal system is absolutely not fit for purpose, a problem that is compounded by the increasing casualisation of the labour market. This restaurant, and thousands of places like it, operate on the basis that their employees can’t or won’t challenge them. Ms Sandilands’ very particular set of circumstances meant that they called it wrong in this instance, but in most cases it’s a safe bet.

I’d suggest that, as ‘insiders’, employment lawyers and HR professionals should be doing what we can to promote and protect what’s good about our current anti-discrimination framework, and to fight for better access to justice, particularly for those with claims of low financial value. Brexit (sorry, I’ve just put a quid in the ‘don’t talk about politics’ box) will involve the throwing out of a lot of bath water, we should make sure our substantive discrimination law is not one the babies that goes with it.

Even if the grievances or claims that you tend to get are often spurious, cases like this are a good reminder of why dealing with that sort of claim is a price worth paying for a system which protects us all and which, over 40 years, has contributed greatly to making our society more equal, more tolerant and ultimately less likely to exploit a reluctant 18 year-old to sell a plate of lasagne.

Joanne Sefton, Specialist Employment Lawyer at Menzies Law

Blog: Equal pay – Do you have gender ghettos?

As we’ve mentioned in our previous equal pay blogs, the most difficult – and most expensive – type of equal pay claim comes about when a whole sector of your workforce is made up almost or entirely of one gender (generally women) and it seeks to compare itself with another sector made up entirely of the opposite gender.

Many of you will have heard that Birmingham City Council has had to sell the NEC in order to settle its £1 billon equal pay liabilities, bought about in the most part by its dinner ladies comparing their pay with its dustmen (and similar).

Up and down the country, other public bodies have faced the same problems and private sector employers are not immune either.

What about your business?  You are likely to have some roles or areas of your workforce that are (almost) entirely one gender or the other.  In factories, it’s the male-dominated shop floor.  In law firms, it’s the entirely female secretarial and admin staff.  For schools and colleges it’s the male-dominated site maintenance team.  The long name for it is occupational gender segregation, but academics tend to use the shorthand ‘gender ghetto’.

Apples and oranges

The equal pay risks inherent here are, as you may have guessed, the ‘equal value’ claims.  You may pay your school cooks the same rate regardless of their gender, and likewise all dustmen get paid the same regardless of sex, but do both groups get paid the same?

The question of whether the work done by a cleaner, carer or cook is ‘worth’ the same (or more) than the work done by a driver, caretaker or dustman is almost impossible to answer objectively. It’s like comparing bananas and socks, and everyone will have their own subjective view on the merits of bananas (and indeed socks).  Critically, in the case of female-dominated occupations, I’m going to suggest that our instinctive view of their ‘low value’ is almost certainly influenced by the fact that they are female-dominated occupations, and that women have done them for low pay (or, indeed, without financial reward, in a home setting) for generations. This means that a comparison process – whether done through a JES or an equal value claim, can throw up surprising results.

Can you defend it?

If the two sets of jobs are found to be equal – what then? Can it be a ‘material factor’ defence for an employer to say, simply, that the going rate for cleaners is less than the going rate for drivers, and that’s it?

Often, no.  Sometimes, yes, if you are lucky and can produce robust evidence to prove that the labour market does indeed work in that way (and isn’t just assumed to) and you can show that you would not be able to fill the ‘male’ roles without paying a premium.

But even that’s not the end of the story. Where ‘the market’ is an exploitative market, taking advantage of women and the lack of opportunities that may be available to them, causing wage values to be suppressed, then their equal pay claim could still succeed. The classic example of an exploitative market would be in low-paid, probably minimum wage, work in an area without much economic opportunity. But what about the female City workers who can point to massive average pay gaps?  Are assumptions being made during their careers about their aggressiveness, their commitment and their longevity that lead to a market where a woman is seen as worth less than a man?

There are plenty of claims out there, waiting to be brought. If you have roles which are heavily weighted towards one gender or the other – at whatever level of the business – then you need to look closely at your risk, and we’re keen to help you do that.

Our Gender Pay Gap service

If you have 250+ employees, we’d love to tell you about our bespoke Gender Pay Gap Audit & Advice service.  Just get in touch and we will be happy to explain how we can support you.

Joanne Sefton
Barrister, Menzies Law

email Joanne

Joanne Sefton, Specialist Employment Lawyer at Menzies Law

Blog: Stiletto Stand-off

You’ve got to admire Nicola Thorp, the receptionist at the heart of the PWC high-heels furore that is momentarily distracting the column-writers from Brexit for five minutes. She didn’t want to spend a nine-hour shift escorting people to and from meeting rooms in heels, so she left and kicked up a stink about it. Good for her.

As a few readers may know, I’ve got a reputation as a bit of a heels devotee. As someone who struggles to scrape over the 5 foot marker without artificial assistance, I reckon I’ve got an excuse. There’s no rule about wearing them in court, in a client meeting or in a seminar but, for me personally, it’s part of the professional impression I want to project. Plus it’s nice to be able to see over the lectern!

That said, it’s clear that a requirement to wear minimum 2-inch heels does have a health impact, particularly where it is happening on a daily basis, and in a job which involves spending significant time on ones feet. Despite the rather mealy-mouthed approach in case law, which establishes only that dress codes must require ‘equivalent standards of smartness’, I’d suggest most clear-thinking people would see it as pretty blatantly discriminatory too.

So why do I feel a little squeamish about banning the rule, as Miss Thorp’s petition would have us do?

I think it comes down to this. The rule, unsatisfactory as it may be on various levels, is clear. What you have to do to comply is obvious. I understand from the reports that Miss Thorp was given the opportunity to go and buy a pair of heels and return to work. I don’t criticise her for a minute for deciding not to, but there is something to be said for the choice being there.

As things stand now, certain employers – high-end retailers and financial institutions included – are going to want their staff to project a particular image. (Interesting, high heels were apparently banned as too ‘common’ in equivalent workplaces in previous decades. What goes around comes around.)  If you Google the 2014 ET case of Whiterod v Karen Millen you’ll get an interesting insight into the tension that can arise. If public-relations management drives PWC (and the agency who actually hired the receptionists in this case) to abandon express footwear policies then is there not a danger of ‘unwritten’ rules continuing to be applied? For a casual workforce with few employment rights, it’s all too easy for an individual to find themselves out of a job without being given reasons for why their face didn’t fit.

Unwritten rules and norms have a tendency to discriminate against the more vulnerable in society – younger people just joining the workforce, those from more deprived socio-economic backgrounds and those from non-mainstream cultures. Some of them, in Miss Thorp’s shoes, might rather be given the option to buy the heels and come back.

Joanne Sefton
Barrister, Menzies Law

email Joanne

Joanne Sefton, Specialist Employment Lawyer at Menzies Law

Blog: So what exactly do we mean by ‘equal pay’?

Slightly oddly, the Equal Pay Act, and the updated provisions in the Equality Act, apply only to male/female pay differentials – in other words, gender equality only. It is against the law (obviously, I hope!) to pay a black worker less because she’s black, or a disabled worker less because of his disability, but that would have to be challenged as a standard discrimination claim.

The very specific, technical regime of Equal Pay law allows a broader comparison, designed to enable women to challenge the very deep-seated causes of (gender-based) pay equality. For example, a female cleaner could allege that she should be paid at the same rate as a male handyman. A female therapist could allege that should be paid at the same rate as a male chiropractor, and so on. When we say it’s a ‘very specific, technical regime’, we mean it. Getting your head around the rules – whether you want to make a claim or defend one – is up there with understanding Cantonese, Cloud Atlas or cricket (pick your nemesis).

Here’s a taster…

The equality comparison exercise applies to ALL contractual terms. It also requires equality between EACH term, not allowing an ‘overall package’ approach. So an employer might think, okay, he negotiated a higher salary, but she’s got a better car and a gym membership and we let her work from home on Fridays, so ‘it all comes out in the wash’. Unfortunately, no. In that example both the salary differential and the benefit discrepancies could form the basis for equal pay claims. The male employee could sue for having a worse car, no gym membership and not being allowed to work from home on Fridays. His female colleague could sue for having the lower salary.

Wages, pensions and contractual benefits all fall within the ambit of equal pay law, and all can be compared individually. All contractual terms of employment are up for grabs when it comes to gender equality.

What about discretionary or non-contractual benefits, I hear you cry! The answer is that they can’t be the subject of an equal pay claim, but they can be sued for as an (ordinary) sex discrimination claim. So there’s no ‘get out of jail free’ card for the employer if the employee is, for example, wanting to sue about a discretionary bonus.

If you have 250+ employees, we’d love to tell you about our bespoke Gender Pay Gap Audit & Advice service. Just get in touch and I will be happy to explain how we can support you.

Joanne Sefton
Barrister, Menzies Law

email Joanne

Joanne Sefton, Specialist Employment Lawyer at Menzies Law