Chalmers v Airpoint Ltd involved a claim of victimisation. To bring a case of victimisation, claimants must show that they have suffered a detriment by reason of having engaged in a ‘protected act’ such as, bringing, threatening or supporting a claim of unlawful discrimination.
The claimant in this case argued that a statement she made during a grievance that her employer’s actions ‘may amount to discrimination’, constituted a protected act. The Employment Appeal Tribunal (EAT) upheld the employment tribunal’s decision that this was not sufficient to amount to a protected act for the purposes of an allegation of victimisation.
The claimant had neither asserted that the employer’s actions were discriminatory nor even articulated the type of discrimination being referred to (ie, sex discrimination). In reaching its decision, the tribunal had been entitled to take into account that the claimant was a well-educated and articulate HR professional.
This looks like a helpful decision for employers, but it should be treated with caution as the particular circumstances of the claimant were clearly material to the decision. Not all claimants may be expected to be as careful in their use of language as the claimant in Chalmers.
In many cases, the fairer question may be whether the employer’s alleged detrimental conduct can properly be found to have been caused by or taken in reaction to what was said and, if so, determine why, rather than focussing on the particular language used. The less precise an allegation, the more difficult it may be to demonstrate this causal connection and the likely reason for it.
The right to claim interim relief (a remedy awarded by an employment tribunal prior to final hearing) is rarely used and is available only in particular cases of automatically unfair dismissal, including whistleblowing cases.
In Steer v Stormsure Limited, a case involving allegations of sexual harassment and victimisation, the issue was whether the fact that UK legislation precluded employment tribunals from awarding interim relief in cases of discrimination was a breach of Article 14 of the European Convention of Human Rights (ECHR) and that such a right should, therefore, be read into the Equality Act 2010.
The EAT held that the availability of interim relief in cases of whistleblowing but not discrimination, was not justified and constituted a breach of Article 14 of the ECHR. The EAT does not have the power to grant a declaration of incompatibility with the ECHR and so the case has been referred to the Court of Appeal.
This is a decision which may excite employment lawyers, especially if the Court of Appeal grants a declaration of incompatibility, which would likely lead to the Equality Act 2010 being amended to add interim relief provisions. However, it remains to be seen whether such a change would lead to an increased uptake in a currently little-used remedy, even in cases where it is available.
Gender pay gap reporting
Following a suspension of penalties for not reporting on the gender pay gap in 2020 due to the Covid crisis, employers were again required to report by 4 April 2021, in respect of the snapshot date of 5 April 2020. Employers who may have reduced staff numbers during the course of 2020 because of the pandemic should note that the gender pay gap reporting obligations still applied if they employed 250 or more employees on 5 April 2020.
Updated government guidance has clarified how furloughed staff should be treated under the reporting requirements. In summary, any furloughed staff on less than full pay on 5 April 2020 (eg, those whose pay was not topped up to 100 per cent) should be excluded from the required obligation to report on the mean, median and quartile hourly pay gap calculations, but should be included in relation to the bonus pay gap report.
It remains to be seen to what extent the impact of the furlough scheme skews the gender pay gap data to be reported this year. Indeed, it may be that the biggest problem will be that we will not know what effect this has had. Furthermore, time will tell whether we learn much about the extent, if any, to which gender equality issues have more generally been affected by the pandemic.
Daniel Peyton is the managing partner of the London office of McGuireWoods and head of its employment law practice