Why a tricky area of the law is only going to get trickier – and how HR can stay ahead
Among the biggest casualties of the introduction of tribunal fees in 2013 were claims for discrimination – there was a 91 per cent drop in the number of sex discrimination cases in the first year.
The Supreme Court’s decision that fees are unlawful (see page 8) will undoubtedly mean case numbers will rise, according to Sarah Embleton, senior associate in the employment practice at Burges Salmon: “People were still bringing bigger, more complex cases where the stakes were higher, but it was prohibitively expensive for many – particularly in cases where claimants were adding discrimination to other claims such as unfair dismissal.”
There are also pertinent cases in the pipeline, says Rachel Farr, senior lawyer in the employment, pensions and mobility team at Taylor Wessing. “In particular, there are a number of cases both recently decided and due to be appealed about tricky areas of disability discrimination: how tribunals are to assess the reason for less favourable treatment, whether (and how far) to adapt recruitment procedures for employees with Asperger’s syndrome, and how far an employer can rely on an occupational health report,” she says.
Farr refers to a recent case where an applicant with Asperger’s was asked to take a situational judgement test as part of the recruitment process to gain a training contract with the government’s legal service, GLS. Ms Brookes requested adjustments be made to the test but this was refused – meaning she narrowly missed out on the pass mark for progressing to the next stage – and her claim for indirect disability discrimination and discrimination arising from a disability was upheld at an employment tribunal.
One of the issues that has traditionally been most challenging is managing potential conflicts between protected characteristics at work. How should managers approach a situation, for example, where someone claims their religious views mean they object to another worker’s sexual orientation? Recent consumer cases have put a spotlight on this dilemma, such as the Christian bakers in Northern Ireland who refused to bake a cake with the slogan ‘support gay marriage’.
HR consultant Martine Robins from The HR Dept advises employers to handle matters informally where possible, and ensure policies around harassment are clear rather than making the issue about race or religion (or any other characteristic). “The key is to deal with it as soon as possible,” she says. “People shy away from these conversations, but training and awareness can help managers nip issues in the bud.”
Jonathan Maude, employment law partner at Vedder Price, agrees: “The worst thing you can do is act more favourably towards one side – it’s much better to take a robust approach based on the facts.”
Future developments in discrimination include the outcome of a consultation on whether caste should be covered in the Equality Act within the definition of race. This follows a groundbreaking case in 2015 when a claimant won almost £200,000 in compensation after being discriminated against because of her caste.
Service provision changes aren’t exciting, but they could prove costly
It’s the four-letter word every HR professional dreads: TUPE, or the Transfer of Undertakings (Protection of Employment) Regulations, has always been fraught with the potential to confuse because it is highly technical and heavy on detail.
Recent cases have focused on one key aspect of the regulations – whether there has been a service provision change during a transfer, which can then determine which employees retain their current terms and conditions (or not) under TUPE at their new employer.
A 2016 case centred on the Salvation Army taking over a contract to look after homeless people in Coventry, involving a TUPE transfer of employees from a charity, Coventry Cyrenians. The charity had previously supported homeless people by offering accommodation across 10 sites, but the Salvation Army decided it would be more efficient to offer it over two, and made some further tweaks to how it delivered support.
Coventry Cyrenians brought a claim to an employment tribunal, where the Salvation Army argued that there had been a service provision change so Cyrenian employees would not be covered by TUPE. The tribunal judge disagreed, claiming that the service was “fundamentally the same”.
Dr John McMullen, partner at law firm Wrigleys, says using service provision change as a way of getting around TUPE rules can be a dangerous route. “Sometimes you see employers restructuring outsourcing arrangements or rewriting tenders so it’s a different kind of service, and therefore TUPE does not apply. But tribunals tend to take a common sense approach,” he says. “They will look at the substance of what’s going on. If it’s just a different mechanism, that does not mean it’s a different service.”
One aspect of TUPE that could become more difficult to unravel is how workers are defined in terms of employment status – particularly as gig economy work continues to grow. Earlier this year, the Independent Workers’ Union of Great Britain (IWGB) brought a case against CitySprint, arguing that a courier had wrongly been classified as an independent contractor by the company after it bought his previous employer, and was denied holiday pay.
It won this case and the courier was given his outstanding pay, but the IWGB is still fighting for the courier to be recognised as a worker under the TUPE transfer and gain other associated employment rights. If a tribunal finds in the courier’s favour again, it could establish the first precedent on whether TUPE transfer rules cover workers as well as employees.
Charles Wynn-Evans, head of the employment practice at law firm Dechert, says that, as employment relationships become more complex, the key is to establish early on who falls under TUPE, and make consultation arrangements in good time: “Make sure you know who’s applicable, for example in an outsourcing arrangement, and don’t leave it until the last minute to elect representatives.”
Brexit, he adds, is unlikely to lead to any changes to TUPE legislation, in the short term at least. “It is possible a government could make changes in the future – for example, making it easier to harmonise terms – but that doesn’t mean it’s likely.”
Justifications matter when it comes to granting or denying requests
According to Deloitte’s Millennial Survey 2017, flexible ways of working – whether that’s location, hours or contractual arrangements – are highly valued by workers born between the early 1980s and early 2000s. Those in organisations with a high degree of flexibility are more likely to be loyal to their employer and to say this has a positive impact on their wellbeing and that of the business, Deloitte found. There are also obvious benefits for parents and carers. But working out competing requests and managing more dispersed workforces is not always straightforward.
Maude says: “If people are working remotely, maybe just for the duration of a project, you must be mindful of whether they have an acceptable level of conduct to represent your company – are they meeting the same standards as onsite staff and is everyone treated fairly?”
Maude currently works with a client where many workers are on 10-month contracts because the work is project-based: “They have a permanent contract but they understand there are 40 days a year when they’re not required. There are knotty issues with things such as holiday entitlement, but these can be worked out and it’s a way of engaging graduates.”
Embleton advises HR professionals not to focus too much on precedents that have been set by other staff, because the law around the right to request flexible working centres on business reasons rather than what’s happened before. She says: “Sometimes managers can be scared to say ‘no, we can’t accommodate this’ and they end up with a department that doesn’t work. Don’t be scared to look at the business need; if you can put forward a good business case and justify your refusal, it would be hard for an employee to take against it.”
It’s important too, Embleton says, to be clear about the justification when you write to the employee in response to their request. “Evidence your decision and show this in the letter, rather than just setting out a couple of bullet points,” she advises.
Where employers should exert caution is in being fair-handed about who is able to work flexibly and who is not. “If you have a practice of not letting people work from home, and this impacts on one gender more than the other, for example, they may have a claim for indirect discrimination,” says Sue Kelly, partner at Winckworth Sherwood.
In a recent case involving XC Trains, it was decided that the company’s requirement that a female train driver work Saturdays and 50 per cent of her roster, rather than the family friendly shifts she had requested, was discriminatory.
According to a recent CIPD Employee Outlook survey, the main reasons employees request flexible working are that it reduces the amount of time spent commuting; they can manage caring responsibilities; and they can spend more time with friends and family. As project-based and freelance working increases, too, it’s clear that HR will need to keep on top of a growing number of less formal arrangements while being mindful of the law.
From dress codes to the intricacies of helping people from different faiths work together
When it comes to religion at work, one of the ways it is most visibly expressed is in the way employees dress. Two European cases have provided food for thought on whether employers can be proscriptive with dress codes in relation to religion.
In Achbita and another v G4S Secure Solutions, the European Court of Justice was asked whether a Belgian company’s dress code – which banned staff from wearing any visible religious, political or philosophical symbols in the workplace – was direct discrimination against an employee who wore a headscarf. In Bougnaoui and another v Micropole, the question was whether requiring an employee not to wear a headscarf after a customer complained was direct discrimination.
But how should these decisions be applied in the UK? “Employers are generally free to set whatever dress code they wish for staff, so long as the requirements are not discriminatory,” says Farr.
In Achbita, where the dress code applied to all groups, this was not discrimination. Telling an employee not to cover her head after a customer complaint, however, was found to be unlawful.
Farr adds that the scope of these decisions for UK companies is fairly narrow. “Employers that intend to operate dress code policies banning religious symbols should ask themselves whether a blanket ban can be objectively justified, or if there is a way of achieving the aim of the dress code policy in a more limited and proportionate manner,” she advises.
Another thorny area for managers can be when staff bring up religious views with colleagues – where is the line between enthusiasm and proselytising? A useful case in this respect, from 2016, considered a situation where a young Muslim employee had complained about a Christian colleague’s behaviour, including being given a book about converting to Christianity, which she had characterised as ‘grooming’. The Christian employee was dismissed for serious misconduct and her claim for religious discrimination and harassment was rejected at tribunal. Disciplining someone for merely manifesting a religious belief, by contrast, would be unlawful discrimination.
There are often certain practical considerations with teams of multiple faiths, including holiday allocation and shift patterns. Is it reasonable, for example, to expect a Jewish employee to work Friday evenings or Saturdays? “If you insist on it, you have to make the business case for it. Is there a reason that you can’t change the shift pattern? Could agreeing to certain shift patterns for someone of one faith lead to conflict with others? It’s a difficult balancing act,” says Donald Mackinnon, director of legal services at Law at Work.
Approving holiday requests on religious grounds should be approached with the same caution. In Gareddu v London Underground earlier this year, the Employment Appeal Tribunal (EAT) upheld a decision that a claimant’s belief that he was entitled to five weeks’ leave to attend religious festivals in Sardinia was not a manifestation of his beliefs, but a wish to be with his family – and therefore refusal to grant the request was not discriminatory.
Kelly says it is important for employers not to shy away from saying no to requests just because the reason given is religion. “Enquire sensitively and look behind the request,” she suggests.
Problems over parity between mums and dads could be storing up trouble
With discrimination against women during pregnancy or maternity leave costing businesses close to £280m a year, according to the Equality and Human Rights Commission, parenthood at work is potentially expensive. And discrimination is a particular consideration when it comes to shared parental leave (SPL).
Although it’s a “step in the right direction”, according to Andrew Howard, associate at law firm Allen & Overy, SPL has not brought the gender equality many hoped for. But it has brought confusion.
The EAT is due to hear two key cases on whether employers that pay enhanced maternity pay must also pay enhanced shared parental pay to their partners.
These cases initially came to conflicting decisions, despite similar facts: in Ali v Capita, the tribunal ruled that not offering enhanced pay to a man who took SPL after his wife was diagnosed with postnatal depression was direct discrimination; whereas in Hextall v Leicestershire Police, it decided that it was not discriminatory for a male employee to receive statutory parental leave pay, as he was treated no less favourably than a woman taking the same type of leave.
Meanwhile, in the unrelated 2016 case of Snell v Network Rail, a male employee was awarded £28,321 for discrimination because his employer refused to pay his SPL at the same level as his wife, who was also a colleague.
“When the regulations came in, government advice seemed to suggest that organisations would not have to enhance shared parental pay even if they enhanced maternity pay,” says Karen Plumbley-Jones, practice development lawyer at Bond Dickinson. “If the decisions show this is no longer the case, they’ll have to revise the guidelines.”
Howard believes there should be an additional right introduced for fathers. “I’d like to see a right to take a period of leave beyond the current two weeks’ paternity leave. This would result in a better take-up of leave by fathers – one of SPL’s common criticisms,” he says.
Only around 7,000 men were paid for SPL in the 2016-17 tax year, according to figures obtained by People Management – this was, in part, because of the rules’ complexity. Rachel Suff, employee relations adviser at the CIPD, says the low take-up has done nothing to “shift the cultural perception of childcare as a ‘women’s issue’”.
Suff says it is essential that employers are clear about the statutory provision surrounding paternity and maternity leave dates and arrangements, including SPL. “The law is complex and specific; it’s not difficult for employers to slip up on some of the detail,” she warns.
Howard urges managers to not be afraid to talk to their employees about family leave – many issues arise when individuals feel ignored or overlooked. Having formal steps also smoothes the process and keeps it consistent, he says: “This will deal with the key points on issues arising before, during and after leave.”
Disciplinaries and grievances
Follow the rule book and keep a written record – or be prepared to write a large cheque
HR isn’t all about the process. But when a disciplinary or grievance makes the news, you can be pretty certain someone, somewhere didn’t follow the rules. Both are situations that organisations strive to resolve informally and internally to avoid a costly tribunal. “Most employees are quite reluctant to raise a formal grievance because they think they will be earmarked as a troublemaker, and employers wish to avoid the fallout,” says Karen Jackson, solicitor and managing director at didlaw.
Barry Harwood, barrister at Kenworthy’s Chambers, warns that not enough managers take into account the legal consequences of failing to follow appropriate practice in either situation. “Either side of a grievance or disciplinary dispute could see up to a 25 per cent increase in compensation if they fail to follow best practice,” he says.
“If an employee were to resign, then claim they were constructively dismissed in a tribunal, they could have their compensation reduced for a failure to follow the internal grievance process first. Should an employer fail to offer an appeal to an employee who is being dismissed for gross misconduct, they might have their compensation payment increased for the failure to follow proper, fair proceedings.”
When any formal issue is raised, employers are obliged by law to follow the official Acas guidelines for managing disciplinaries and grievances. In July, the case of Ms V Wileman v Lancaster & Duke Limited saw a recruiter awarded more than £7,000 in damages after a tribunal found her employer had dismissed her for gross misconduct without raising formal concerns about her behaviour beforehand.
Employers can also be tripped up for failing to carry out fair and reasonable investigations of their employees when disciplinaries arise. In 2014, the Supreme Court prevented an NHS Trust from bringing a disciplinary hearing over confidentiality breaches, as it had not carried out a proper investigation of the breaches.
“In every disciplinary and policy procedure, there is a list of sanctions to implement before issuing a verbal warning or a final written warning, and different levels of sanction or penalty available to an employer,” Harwood says. “Employers must take these into account, or risk acting outside the band of reasonable responses test.”
Context may also be taken into account under the ‘Polkey deduction’, which dates back to the 1987 case of Polkey v AE Dayton Services, where a driver was made redundant from his business with no warning. While the dismissal was ruled to be unfair, it was acknowledged that because of limited budgets and trying circumstances, the redundancy would have occurred regardless of fair process.
To avoid hefty tribunal payments, experts urge employers dealing with a disciplinary or grievance to try to resolve issues informally and ensure an employee does not feel persecuted for raising an issue. “The key thing is to keep lines of communication open,” says Jackson. “The quickest way to drive someone into the arms of a lawyer is to ignore their complaint – time and again this happens where the company grievance process isn’t followed or an employee is not kept up to date.”