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Indirect Discrimination

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Indirect discrimination occurs when an employer applies a provision, criterion or practice (PCP) to all employees which disadvantages a group of people who share a protected characteristic (such as race or sex). Indirect discrimination can be justified if it is a proportionate way of achieving a legitimate business aim. In making their decisions, employment tribunals must take ‘judicial notice’ of facts that are so well known to the court system that they can be accepted without further enquiry. One of those universally accepted truths relates to what the Employment Appeal Tribunal has recently described as the ‘childcare disparity’, where women are less likely than men to be able to accommodate certain working patterns because of childcare responsibilities.

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Discrimination – interim relief

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Interim relief is a powerful weapon in the employment tribunal’s toolbox. An employee can only ask for interim relief in dismissal claims relating to trade union, health and safety activities and whistleblowing. If an employee shows that there is a ‘pretty good chance’ that they will win their claim, the employment tribunal can make an order for their reinstatement (to their old job), reengagement (to an equivalent role) or simply for their contract to continue, with pay but without working, until the full hearing. It is a powerful tool because it essentially reverses the dismissal pending the final hearing.

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Philosophical belief discrimination

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Religion or belief is a protected characteristic under the Equality Act 2010 and can include any religious or philosophical belief. Article 9 of the European Convention on Human Rights provides for freedom of thought, conscience and belief. In a case called Grainger v Nicholson, the Employment Appeal Tribunal drew on the ECHR and gave guidance on what kinds of belief should be protected. The belief must be genuinely held; it must be a belief not a viewpoint or opinion; it must involve a weighty aspect of human life and behaviour; it must achieve a certain level of cogency, seriousness, cohesion and importance and it must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with other people’s fundamental rights. The EAT has looked recently at whether a belief that humans cannot change sex is a protected belief under the Equality Act 2010.

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Disability – Long Covid

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The TUC has called for long Covid to be recognised as a disability and an occupational disease so that workers can access legal protection and compensation. Their survey of more than 3500 workers, all of whom said they had contracted Covid-19, found that nearly a third have experienced symptoms for more than a year and 95 per cent have been left with ongoing symptoms. More than three quarters of those surveyed were key workers in either education, health or social care. They reported a range of responses when disclosing symptoms to employers, including questions about the impact of Covid symptoms, queries about whether they had long Covid at all and 5% said they had been forced out of their jobs. The report asks the government to change the Equality Act 2010 to show that long Covid is deemed to be a disability (in the same way as cancer, for example).

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Unfair dismissal – illegality

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Parties to an employment contract where illegal activity has occurred may be prevented from bringing employment related claims. Where an employment contract has been entered into lawfully, but then illegally performed, the enforceability of the contract will depend on the parties’ knowledge of, and active participation in, the illegal conduct. The Court of Appeal has previously found that an employee who unknowingly worked in breach of immigration rules was not stopped from enforcing her contract (Akedina v Chilake). The Court of Appeal has looked at this issue again recently in Robinson v His Highness Sheikh Al Qasimi.

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Equal pay

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The Supreme Court handed down a final judgment in the Asda equal pay saga. In Asda v Brierley, a predominantly female group of Asda store workers are saying they should be paid the same as a group of predominantly male distribution depot workers who are paid more than them. The proposed comparators work at different ‘establishments’ – the claimants work in Asda stores and the comparators in Asda distribution depots. Section 79(4)(c) Equality Act 2010 says that if equal pay comparators do not work at the same workplace, then the employees must be on ‘common terms’ of employment to bring an equal pay claim. ‘Common terms’ isn’t defined in law, but case law has shown that the ‘common terms’ test is met where:

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Covid-19 – Unfair dismissal

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The employment tribunals have handed down more judgments this month in relation to Covid-19 related dismissals. In Accattatis v Fortuna Group, the employee worked for a company which sold PPE. In March and April 2020, he told his employer he was uncomfortable travelling on public transport and working in the office. He repeatedly asked to either work from home or be furloughed. The employer said the business was too busy for furlough and the job couldn’t be done at home. However, they said he could take holiday or unpaid leave. The employee refused, and when he continued making the same requests, he was dismissed.

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Fire and Rehire

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Should employers be allowed to fire and rehire? In economically hard times, or when a business is restructuring, the ability to change employment terms can be an essential tool. The law does not allow an employer to change employment terms unilaterally, so giving lawful notice and offering a new contract in return is a safer option. It does create a dismissal though, which may be unfair. Unfair dismissals are often defended on the basis of SOSR – some other substantial reason – but the business need only have a ‘sound business reason’ for the contract change, as well as behaving reasonably overall. Is banning a perfectly legitimate process – lawfully ending one contract and offering another – really the answer?

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Sex discrimination

adrian_fryer

Direct discrimination happens if an employer treats an employee less favourably than it treats others because of sex. A female employee would need to show that she has been treated less favourably than a real or hypothetical comparator of the opposite sex whose circumstances are not materially different to hers. In Ali v Capita Management, the Court of Appeal decided that a man on shared parental leave could not compare himself to a woman on maternity leave who was paid more than him. The Court of Appeal said that the purpose of maternity leave goes beyond childcare and centres around the health and wellbeing of the pregnant and birth mother. Mr Ali’s claim failed because his circumstances were materially different to his comparator’s. The correct comparator was a woman on shared parental leave. The EAT has recently considered a similar case, this time involving a man on shared parental leave and a woman on adoption leave.

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Strike action

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The Trade Union and Labour Relations (Consolidation) Act 1992 (TULCRA) provides protection to employees taking part in trade union activities including industrial action. TULCRA provides an absolute ban on dismissing an employee for taking part in industrial action, but there is no ban on subjecting employees to a detriment short of dismissal on the same grounds. Section 146 TULCRA protects employees against detriment for taking part in ‘trade union activities’ but not industrial action. Article 11 of the European Convention on Human Rights (ECHR) guarantees the right of workers to join a trade union. UK law must be interpreted in a way which gives effect to the ECHR.

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