During the Queen’s Speech on Monday 14thOctober 2019 the government announced plans to introduce a new law which will force employers to pass on all gratuities in full and to share fairly any pooled tips. Employment (Allocation of Tips) Bill, it also introduces a Code of Practice for restaurants, bars and cafes to make their systems transparent. The Bill will enforce the requirement for employers to pass all tips to their employees.
Date TBC.
Dr David Mackereth, a contract worker at the DWP’s assessment centre refused to refer to transgender claimants by their preferred name, gender pronoun and title. He made comment “if you have a man six feet tall with a beard, who says he wants to be addressed as ‘she’ and ‘Mrs’; would you do that?”
Dr Mackereth claimed that doing what he was requested to do was at odds with his Christian faith and he would not be able to do so in good conscience.
The ET found his objection was “incompatible with human dignity” and any refusal to refer to a transgender person by their relevant pronouns would constitute unlawful discrimination or harassment under the Equality Act.
“What this case concerned is whether he was entitled to manifest those beliefs in the circumstances that applied here. He accepted that his beliefs meant that insofar as a service user was a transgender individual within the meaning of the Equality Act, that whilst he did not wish them to, his actions would cause offence and potentially breach the Equality Act.
“We find that if the service user also held a full gender recognition certificate Dr Mackereth’s position was that he would also potentially breach the Gender Recognition Act for the reasons we give above.”
Dr Mackereth intends to appeal the decision.
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Mr Gordon Fleming, former employee of East of England Ambulance Service NHS Trust has been awarded £92,000.
Mr Fleming suffered a heart attack and was subsequently diagnosed with an anxiety-depression disorder. After attending “a hostile welfare meeting” in which the employer expressed concern for Mr Fleming returning to work, symptoms of anxiety were heightened and the Claimant was readmitted to hospital. He wrote to his employer expressing concern over his perceived lack of support and expressing that his inability to return to work had led him to consider suicide. After a prolonged period of absence, the Claimant was dismissed for failing to attend an Occupational Health appointment and failing to attend a disciplinary without good reason. However, evidence was presented at the Tribunal that when attending a prior meeting during the period of absence, a panel member had made a comment about the Claimant regarding the panel member “pummelling it into him with my fists”. This had been a factor in Mr Flemings failure to attend a further disciplinary and had impacted his health condition and anger towards his employer.
The case judgement makes an interesting read…
A failure to act when reasonably aware of discrimination could leave you open to a claim of being vicariously liable for discrimination as a company. Such is the case as found at a recent Tribunal in which the MoD was found not to have taken reasonable steps to protect two former paratroopers. The Tribunal found that a “degrading, humiliating and offensive environment” had manifested and was not dealt with.
1. Part-time teacher in Court of Appeal holiday pay victory
The Court of Appeal upheld a ruling that a teacher’s holiday was wrongly calculated, in a judgment that was described as a victory for part-time workers.
The court ruled that Ms L Brazel, who works as a visiting music teacher for Bedford Girls’ School, should have her holiday pay decided on her earnings over a 12-week reference period. Her employer had argued that the standard way to determine holiday pay was on a pro-rata basis.
Using the method recommended by Acas for casual workers, the trust operating the school had been recording Brazel’s holiday as being the equivalent of 12.07 per cent of hours worked – calculated by dividing the number of working weeks by the statutory 5.6 weeks’ entitlement. However, Brazel successfully argued that the Working Time Directive (WTD) dictated that holiday pay should be calculated by taking a week’s pay – an average of weekly remuneration for the 12 weeks before the calculation date – and multiplying that by 5.6.
The judge noted there was nothing in the WTD that required a different approach to be taken if a worker did not work a full year.
2. Pub manager wins harassment claim after ‘poor taste’ sexual innuendos
A pub manager was sexually harassed after a senior co-worker engaged in “poor taste humour” by making sexual innuendos towards her, an employment tribunal (ET) ruled.
The Sheffield ET found that even without any “malicious intent” on the part of the perpetrator, making sexual innuendos could reasonably be perceived as violating an individual’s dignity and creating a hostile work environment.
The judge added that although Ms J Prewett, who worked for pub chain Greene King from 1995 until her resignation on 5 December 2018, was used to dealing with a wide range of customers in her working life as a pub manager, the statements in question were made by a colleague “with whom, at the time of these events, she had a very serious job to do”, and were therefore inappropriate.
3. Employee wins harassment case after supervisor made racist remarks
A council employee won his claims of racial harassment after an incident where his supervisor made racist remarks towards him as they drove to a job.
The Leeds ET found that Mr A Leader, an environmental action operative employed by Leeds City Council, suffered “clearly unwanted” comments about his race, the colour of his skin and the nationality of others that amounted to racial harassment.
In what lawyers described as an ‘unusual’ move, the ET dismissed claims against the council itself after ruling that the employer had shown it had taken all reasonable steps to prevent the supervisor from making racist comments to fellow employees. The case proceeded instead against the individual supervisor who made the remarks.
4. Bank discriminated against diabetic manager sacked for locking customer in branch
A bank manager was discriminated against when his employer unfairly dismissed him for failing to undertake proper checks, something he attributed to the side effects of his ‘uncontrolled’ diabetes.
A London ET ruled that HBOS, which previously ran the Halifax building society business and is now part of Lloyds Banking Group, unfairly and wrongfully dismissed Mr B Kuppala after his diabetes inhibited his ability to follow the proper security and closing procedures at his branch. Kuppala was found to have left keys in the door on multiple occasions, and once locked a customer in after closing time.
The tribunal concluded that if HBOS had obtained occupational health advice, it would have been told Kuppala was disabled and “the disability was uncontrolled and likely to have had an effect on his concentration and his tiredness”.
5. Colour blind police officer stripped of driving duties was discriminated against, tribunal rules
A police officer with a form of colour vision defect faced indirect sex discrimination after his employer temporarily removed him from its rapid response driving team, a London tribunal has found.
Alexander Wisbey, a police sergeant on the City of London force, was an authorised firearms officer and part of the rapid response driving team, but was removed from both teams in April 2017 because of his colour vision defect, before being reinstated following an investigation.
He argued this was indirect sex discrimination as his condition, which was genetic, affects significantly more men than women.
A London ET ruled that the force indirectly discriminated against Wisbey when it temporarily banned him from the rapid response driving team – but not when it took him off the firearms team – because it did not thoroughly investigate colour vision standards as it did for those within the firearms team.
Government Consultations are currently open in respect of the following:
https://www.gov.uk/government/consultations/consultation-on-sexual-harassment-in-the-workplace
Summary
This consultation aims to gather evidence about whether the current laws on protecting people from sexual harassment in the workplace are effective.
This consultation closes at 11:59pm on 2 October 2019
Summary
This consultation seeks views on different ways in which government and employers can take action to reduce ill health-related job loss.
This consultation closes at 11:45pm on 7 October 2019
The plans suggested that the first four weeks of paternity leave would be paid at 90 per cent of normal salary. An additional eight weeks’ paternity leave would be unpaid.
At present, fathers receive just two weeks’ paid paternity leave at the lower of 90 per cent of their salary or the SPP rate.
A council worker who was filmed making potentially offensive comments about Jews during a political rally was unfairly dismissed, an ET has ruled.
Stan Keable, who worked for Hammersmith and Fulham Council, was dismissed after complaints were lodged when a video of him arguing that the Zionist movement collaborated with the Nazis went viral on Twitter after it was posted by a BBC journalist.
However, the London Central ET ruled that Keable’s comments – which may have been offensive to some – were not discriminatory or unlawful and were made outside the workplace, not in breach of the council’s workplace policies.
The Supreme Court ruled that restrictive covenants preventing an employee from being “concerned or interested” in a competitor for six months after she left the business were not too wide to be enforceable.
In a decision that experts said would come as a relief to employers, judges overturned a previous Court of Appeal decision and formally reinstated an injunction against a former employee of recruitment firm Egon Zehnder, Mary-Caroline Tillman, which would have prevented her from taking up employment with a competitor had the contractual period of restraint not since expired.
The case set the precedent that restrictive covenants can be broadly enforceable even if there are elements of the contract a court might deem to have gone ‘too far’, and that offending words can be removed from a contract if it does not substantially change the overall effect of the restraint.
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