robbryanassociates

Posts Tagged ‘discrimination’

Recent Cases of Interest

In business principles, contracts, Employment law, Equality, Uncategorized on September 27, 2021 at 10:54 am

Forstater v CGD Europe and Others – Discrimination on the Grounds of Philosophical Belief

The Equality Act 2010 protects against discrimination based on 9 protected characteristics, namely age, disability, gender reassignment, race, religion or belief, sex, sexual orientation, marriage and civil partnership, pregnancy and maternity.

In the recent case of Forstater v CGD Europe and others, Ms Forstater registered a claim with the Employment Tribunal that her contract with CGD Europe, who are a registered research or think-tank charity, was not renewed because of her gender-critical beliefs.

Before deciding whether there was any wrongdoing on the part of CGD Europe, the Tribunal had first to consider whether her belief was indeed protected by the Equality Act.   

In a complex scenario centred around transgender rights and identity, Ms Forstater’s viewpoint was, in a nutshell, that biological sex was real, important and unable to be changed. Her claim raised the debate about the scope of trans rights and the relevance of an individual’s biological sex, versus their gender identity.

Initially the Tribunal found that Ms Forstater’s beliefs were contrary to trans rights previously established by the European Court of Human Rights. However, the Tribunal’s decision has now been overturned by the Employment Appeal Tribunal, who considered that Ms Forstater’s views were deserving of respect and that only the most extreme beliefs should be excluded from protection under the Equality Act.

Ms Forstater’s claim has therefore now been referred back to the Employment Tribunal for them to consider whether CGD Europe’s original decision not to renew her contract was discriminatory.

Follows v Nationwide Building Society – Indirect Associative Discrimination

Ms Follows had been employed by Nationwide Building Society as a Senior Lending Manager and for the last 7 years had been home-based allowing her to look after her disabled mother.

As a result of a re-structuring exercise the society decided to reduce the overall number of Lending Managers and stipulated that those to be retained must be office-based. As a result, Ms Follows made a claim to the Employment Tribunal of unfair dismissal, indirect associative discrimination and indirect sex discrimination.

The tribunal upheld all of these claims against the Nationwide on the basis that the stipulation about office working put Ms Follows at a disadvantage because of her association with her disabled mother and that her dismissal had taken place without reasonable steps being taken to avoid that disadvantage.

This is the first time that a claim of indirect associative discrimination has been upheld since the introduction of the legislation in the UK.  

Dressed for Work?

In Uncategorized on June 28, 2016 at 8:14 pm

When summer does arrive in the UK employers often begin to notice more relaxed dress standards. Now is the time to remind employees of your guidelines on what you regard as acceptable. Dress codes should help Manager’s avoid misunderstandings with employees about what attire is considered appropriate for the work place. Written guidelines will also assist Manager’s in enforcing dress codes in a consistent, non-discriminatory manner.

Employers establish dress codes for a variety of reasons, including to present a positive image to clients, to prohibit employees from coming to work with offensive, distracting, or inappropriate attire, and to avoid clothing that would present a health and safety risk. While business attire was the norm at companies for many years, employers have relaxed dress codes in an effort to improve morale and retention. Casual dress policies have become more common at work in response to employees’ demands for flexibility and a relaxed work environment.

We would advise having clear, fair and enforceable policies on dress in the workplace. You also need to ensure that your workplace actions and expectations are not discriminatory.

You have probably recently seen in the press reference to the London receptionist sent home for not wearing heels. You can understand how a number of professions have to wear particular pieces of uniform for health and safety reasons, but for what logical reasons should women be required to wear high heels?
As the law stands, employers can dismiss staff who fail to live up to “reasonable” dress code demands, as long as they’ve been given enough time to buy the right shoes and clothes. They can set up different codes for men and women, as long as there’s an “equivalent level of smartness”.

Aside from the reasons above, employers should be aware that by dictating dress codes to women, they could find themselves at the wrong end of a discriminations claim if an employee was treated “less favorably” than a colleague of the opposite sex as a result. Simply, where the dress code could result in some disadvantage to the female employee which other male employees do not face, they may have a case on the grounds of sex discrimination

Employers are right to insist that their staff are presentable, neat and professional and appropriately dressed for work, but should not insist that females wear high heels to conduct their working day or shift.

There has also been in the press, details of a Belgian case regarding the treatment of religious observance and dress in the workplace.

In Achbita v G4S Secure Solutions NV the employee – a Muslim woman – was dismissed for insisting on wearing a hijab (or headscarf) when at work. The employer had a blanket rule forbidding any customer-facing employee from wearing visible religious symbols or dress in order to preserve a strict ‘neutrality’ in its dealings with customers. The Belgian Court referred the matter to the European Court of Justice asking whether a dismissal in such circumstances amounted to direct discrimination.

The case has yet to be decided however, it is unlikely that a UK Employment Tribunal could be persuaded that a policy of ‘neutrality’ is a sufficient reason to dismiss a Muslim woman who feels a religious obligation to wear the hijab at work.
Any dress code should be non-discriminatory and should apply to both men and women equally. If you need help to review your dress code please contact us and we can ensure that your workplace policies are not discriminatory and appropriate for your business.

Right to Request Flexible Working Extended to All Employees

In Uncategorized on March 3, 2011 at 1:25 pm

Right to Request Flexible Working Extended to All Employees

Key details

Due to come into effect from 30th June 2014, the right to request a flexible pattern of work is amended by:

  • extending the right to request flexible working to all employees (not just those with parental responsibility for a child, or caring responsibilities for an adult);
  • replacing the requirement for the employer to deal with the request in accordance with the statutory procedure with a requirement to “deal with the application in a reasonable manner”; and
  • requiring the employer to notify the employee of its decision within a “decision period” of three months of the application (or longer if this is agreed).

The 26-week qualifying period for employees to make a request for flexible working is retained along with the restriction that employees can only make one flexible working request in any 12-month period.

Acas has produced a draft non-statutory booklet that provides good practice guidance for employers in dealing with such requests and this can be accessed via the following link:

http://www.acas.org.uk/media/pdf/p/6/Handling-requests-to-work-flexibly-in-a-reasonable-manner-an-Acas-guide.pdf

The opening up of the eligibility criteria for the right to request flexible working is likely to lead to some fairly high profile coverage in the media nearer the implementation date, so employers are advised to prepare themselves for a possible influx of applications soon after 30th June 2014. Further advice and guidance on the subject can of course be obtained from your consultant.

Rob Bryan Associates
http://www.robbryanassociates.org.uk
rob@robertbryan.co.uk            chris@robertbryan.co.uk

 

Equality Act

In Uncategorized on July 5, 2010 at 11:43 pm

The Coalition government will be implementing the first stages of the Equality Act from 1 October 2010.

Is you organisation ready for the changes?

Discrimination definitions will be standardised across many different headings including; age, disability, gender reassignment,race, religion or belief, sex, sexual orientation, marriage or civil partnership and maternity and paternity.

See details at http://www.acas.org.uk/CHttpHandler.ashx?id=2840&p=0

Whilst traditionally discrimination was limited to actions against a person with specific personal characteristics – Discrimination by Association means new claims can now arise from a person’s ‘association’ with that person. i.e. discrimination against a parent with a disabled child or removing a job offer upon discovering an employee’s partner was black or gay.

So when did your organisation last review the diversity / equal opportunity policy or carry out any in house seminars for managers supervisors.

For more information and practical help go to http://www.robbryanassociates.org.uk

Rob Bryan LLM MA FCIPD MIOSH