Archive
Category: Discrimination
£1.7m award – unfair dismissal and disability discrimination
A tribunal has awarded £1.7m in compensation following a successful unfair dismissal and disability discrimination claim. An employee lost access to private medical cover he relied on for cancer treatment after being made redundant. Here’s what you need to know.
Background
An employee had suffered from cancer most of the time he’d worked for the employer. He relied on the employer’s private medical cover to manage symptoms and receive treatment (unavailable on the NHS). He was made redundant despite colleagues having alternative roles created – losing access to private medical cover when he lost his job. He was unable to find an alternative before losing his battle with cancer. The £1.7m compensation was awarded to his widow.
Practical takeaway
Genuine consultation – the tribunal said there was a meaningless consultation process and no exploration of alternative roles. Take early advice on the appropriate consultation process to follow and save evidence of all consultation processes and discussions.
Loss of benefit – typically the loss of private medical cover won’t attract compensation as the NHS can continue the care. However in this case the NHS was unable to do so at the same speed and level of specialism. Do your homework and understand whether the loss of private medical cover is likely to result in a worsening of the employee’s condition. If so, you need to understand the potential financial exposure if any dismissal is considered unfair or discriminatory.
Get in touch if you need our advice or support.
This update is accurate on the date it was sent (11 November 2022), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.
£420,000 award – sex-based harassment and victimisation
A tribunal has awarded £420,000 in compensation following a successful sex-based harassment and victimisation claim by an employee disinterested in her manager’s advances.
Background
A female employee was bombarded with inappropriate messages from her manager – including expressions of his feelings for her and peach emojis (widely known to refer to a person’s bottom). She’d refused his advances and raised a grievance. She resigned and suffered “significant and debilitating” post-traumatic stress disorder. The tribunal upheld her claims awarding £420,000 in compensation.
Practical takeaways
Impartial grievance process – the tribunal found the investigation into the employee’s grievance had labelled her as a “scheming femme fatale” and was predetermined to accept the manager’s explanation. Taking early advice as to who should carry out the grievance process to avoid further discrimination is vital. In the circumstances, the respondent may have been well advised to ask someone from outside of their business to carry out an impartial process.
Up-to-date policies – bullying, harassment and inclusivity policies must be dynamic and engaging (and up to date!). Tribunals are ready and willing to call out employers for out-of-date policies (as this recent case shows).
Training – tribunals expect regular and effective training on your bullying and harassment policies. They take a dim view of overly simplistic and superficial sessions – demonstrating a genuine commitment to tackling harassment is key.
Zero-tolerance – harassment without consequence only breeds a culture of acceptance…and potentially hefty tribunal awards! Even with the right policies and training in place, those tasked with dealing with grievances must be empowered and supported to act consistently and take robust action when required.
Being able to take early and effective advice right when you need it is why our Intelligent Employment is unlimited – find out more!
This update is accurate on the date it was sent (09 November 2022), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.
Create appropriate space for breastfeeding – new decision
A recent tribunal decision has found that employers must provide employees with a private workspace to express breastmilk to avoid successful claims for sex-related harassment claim.
Background
A teacher returning from maternity leave informed her employer a number of times that she would need somewhere to express breastmilk whilst at work. The school failed to support her request meaning she used her lunch break to express in her car or in the school toilets. The tribunal held that the employer’s behaviour created a degrading and humiliating environment for the teacher, and therefore amounted to sex-related harassment.
Practical takeaway
Return to work – the school in this instance were specifically called out for their ‘incompetence’ in managing the employee’s return to work. Any employee returning from maternity leave may have concerns or reservations, so ensuring you’re carrying out a timely risk assessment to pick up on and address any possible issues (then acting accordingly) will help to mitigate potential challenge.
Health and safety – whilst there’s no statutory right to facilities in order to express breastmilk, the Health and Safety Executive provide specific guidance that a private and clean environment should be provided as well as a fridge in order to store expressed milk.
If you need support in managing a return to work or requests from employees, Intelligent Employment is here to help – get in touch.
This update is accurate on the date it was sent (27 July 2022), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.
Refusal to use preferred pronouns
A Christian doctor refused to use transgender service users’ preferred pronouns – the Employment Appeal Tribunal (EAT) found that his dismissal was not discriminatory.
Background
The doctor worked as a health and disability assessor. He refused to use the preferred pronouns of transgender service users based on his Christian faith and belief that people are born male and female and cannot change their sex or gender. This belief conflicted with his employer’s policy to refer to transgender service users ‘in their presented gender at all times’.
The EAT held that such beliefs could be protected under the Equality Act 2010. They also held, however, that due to the way the doctor had expressed his beliefs and taking into consideration the employer’s policy, the employer had not discriminated against the doctor by protecting potentially vulnerable service users in the way they had.
Practical takeaways
Balancing act – as we’ve seen in another recent decision, freedom of expression must be balanced with respect for others. Respectful communication and behaving with dignity can be reminded through up-to-date training and policies. Get in touch for access to our gender identity policy.
Focus on facts – this decision (and similar) are highly fact sensitive, so approach cautiously. The impact of the doctor’s beliefs on service users was key, as was his lack of any attempt to seek adjustments that would cater for his beliefs.
The last word – the doctor has expressed his intention to take his case to the Court of Appeal meaning this may not be the last word we hear on this. We’ll update you when we know more.
Our Intelligent Employment platform includes a gender identity policy to support you to champion a workplace environment where everyone feels included with the freedom to express themselves – find out more about accessing Intelligent Employment.
Gender Identity | 21 July – sign up for our latest webinar
In celebration of Pride, we’ve joined forces with GIRES (the Gender Identity Research & Education Society) to bring you practical, real-world guidance on gender identity (click here for all the detail). Join our webinar on 21 July 2022 @ 10 am and register your place today!
This update is accurate on the date it was sent (19 July 2022), but may be subject to change which may or may not be notified to you. This update is not to be taken as advice and you should seek advice if anything contained within affects you or your business.
Tribunal decision – gender-critical beliefs may be protected by the Equality Act
A recent tribunal decision has shown that individuals holding gender-critical beliefs may be protected under the Equality Act 2010 (EQA).
Background
The individual was engaged as a consultant and posted a series of opinions on her personal social media account regarding amendments to the Gender Recognition Act. Her belief was that “biological sex is real, important, immutable, and not to be conflated with gender identity”.
Colleagues complained that her comments were offensive and following an investigation, her consultancy agreement was not renewed. The tribunal found her beliefs amounted to a genuine philosophical belief for the purposes of the EQA meaning that Act therefore protected her. The tribunal decided that she was discriminated against, as the reason for not renewing her consultancy was because she’d voiced her beliefs.
Practical takeaways
Policies and training – freedom of expression must be balanced with respect for others. Through training and policies, the importance of respectful communication and behaving with dignity can be reminded, along with where to turn if individuals have concerns.
Colleague care – consider helplines and colleague champions to remind those with concerns of the routes to redress.
Manager support – ensure managers understand your policies and who is there to support them in managing any concerns raised within their team.
Our Intelligent Employment platform includes a gender identity policy to support you to champion a workplace environment where everyone feels included with the freedom to express themselves – find out more about accessing Intelligent Employment.
Gender Identity | 21 July – sign up for our latest webinar
In celebration of Pride, we’ve joined forces with GIRES (the Gender Identity Research & Education Society) to bring you practical, real-world guidance on gender identity (click here for all the detail). Join our webinar on 21 July 2022 @ 10 am and register your place today!