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Employment Update 11 July 2011

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United Kingdom

Read the 'Employment Law Update' newsletter, 11 July 2011, on ffw.com

Welcome to our fortnightly round-up of what's happening in employment law.

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Lawyers at disciplinary hearings

The Employment Appeal Tribunal (EAT) has confirmed that an employer had not breached the duty to make reasonable adjustments by failing to adjust redundancy selection criteria for a disabled employee.

In Lancaster v TWBA Manchester, Mr Lancaster was employed as a senior art director at a marketing and advertising agency. He had a panic disorder and a social anxiety disorder and was disabled for the purposes of the former Disability Discrimination Act 1995. As a result of the economic crisis, clients were restricting their spending, so the employer placed a number of roles at risk of redundancy. Mr Lancaster was placed in a pool of three with two other senior art directors. The selection criteria included three criteria which focused on communication skills. Mr Lancaster received the lowest score and was made redundant. He brought claims for unfair dismissal, disability discrimination and age discrimination.

In relation to the disability discrimination claim, he argued that his employer was in breach of its duty to make reasonable adjustments on the basis that:

  • the application of the three communication skills selection criteria was a provision, criterion or practice (PCP) which placed him at a substantial disadvantage compared to the non-disabled employees in the selection pool (the first PCP). It was a reasonable adjustment for his employer to have removed all of the three communication skills criteria.
  • alternatively, all of the redundancy selection criteria amounted to a PCP which placed him at a substantial disadvantage compared to the non-disabled employees in the selection pool (the second PCP). It was a reasonable adjustment for his employer to have replaced all of the selection criteria with an objective set of criteria, such as attendance, disciplinary or absence record.

Although the Employment Tribunal accepted that the first and the second PCPs substantially disadvantaged Mr Lancaster, it decided that the suggested adjustments were unreasonable. In relation to the first PCP, even if the communication skills criteria had been removed, Mr Lancaster would still have scored the lowest and been selected for redundancy. In relation to the second PCP, it was not satisfied that the reasonable adjustment suggested by Mr Lancaster could have prevented Mr Lancaster from receiving the lowest score.

The EAT upheld the Employment Tribunal's decision relating to disability discrimination. The Employment Tribunal was entitled to conclude that because removal of the three communications skills criteria would not have affected the order of the scores of those within the pool and Mr Lancaster's selection for redundancy, the removal was not a reasonable adjustment. In relation to replacing all the redundancy selection criteria with purely objective criteria, the Employment Tribunal was entitled to decide that this was not a reasonable adjustment. The Employment Tribunal recognised that the position of senior art director was a creative position at a senior level and therefore purely objective criteria might not have been sufficient. 

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Disability and redundancy selection criteria

In a case which has attracted much attention, the High Court has confirmed that a school's uniform policy which prohibited boys from wearing their hair in cornrows constituted race discrimination.

In G v Head Teacher and Governors of St Gregory's Catholic Science College, the claimant was of African-Caribbean ethnicity. He had not cut his hair since birth and had kept it in cornrows, in accordance with his family tradition. He was not permitted to attend school as long as he kept his cornrows, as they were prohibited by his school. Girls were permitted cornrows as they were regarded by the school as conventional in girls but not in boys.

The school's uniform policy did not specifically refer to cornrows at the outset, but the cornrow ban was stated at a reception meeting for new pupils. As the claimant and his mother were late arrivals, they did not hear the announcement nor had they been told earlier any more than the policy. The first they knew of the ban was the refusal to allow the claimant to attend school unless the cornrows were removed. Although there were discussions about the possibility of the claimant cutting his hair or removing the cornrows, they had not achieved any positive result. The claimant was therefore unable to take up his place at the school.

The rationale behind the school's uniform policy included a concern to keep gang mentality out of the school and to avoid the ethnic tensions and violence which accompany it. The aim was to make the school a place where the pupils are safe and valued equally. The school also believed that distinctive haircuts could be badges of ethnic or gang identity and can help foster disunity rather than unity. The school ban on shaven heads was also given as an example of a conscious determination to avoid white boys adopting any form of "skin head" styles with negative connotations. The school stated that it adopted a zero tolerance approach to all male hairstyles other than those permitted by their policy and if it were to make an exception for one particular hairstyle, it would no longer justify its zero tolerance approach.

The court stated that, based on the evidence provided, there were those of African-Caribbean ethnicity who, for reasons based on their culture and ethnicity, regard the cutting of their hair to be wrong and so need it to be kept in cornrows. A group therefore existed who could be particularly disadvantaged by a refusal to permit them to wear their hair in cornrows. The claimant had also suffered a traumatic experience in being turned away on his first day and had suffered a particular disadvantage due to the prohibition on cornrows. The school argued that English law does not recognise that voluntarily adopted socio-cultural practices associated with a particular race can amount to race discrimination. The court rejected this argument as it sought to distinguish cultural and family and social conditions from ethnicity but they are often part of what brings a person of a particular ethnicity within the meaning of the legislation. Having found that the school's policy constituted indirect race discrimination, the court also considered that, although the aim of the policy was legitimate, the indirect discrimination which the prohibition on cornrows produced was not justified.

The court, however, rejected the claimant's arguments that there was also sex discrimination, on the basis of earlier case law which established that a uniform policy is not discriminatory if it applies a conventional standard of appearance for both men and women. The school's policy required both sexes to have conventional haircuts. Cornrows for African-Caribbean girls were recognised as acceptable because they were a satisfactory means of keeping long hair neat and under control. In this respect, therefore, the policy did not constitute unlawful sex discrimination. 

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No discrimination against employee who "comes out" at work

The EAT has confirmed that a gay employee who had "come out" at work had not been discriminated against or harassed on the grounds of sexual orientation.

In Grant v HM Land Registry, an employee worked for the Land Registry at the Lytham office, where there were over 300 employees. The employee did not initially reveal that he was gay but later chose to make this public to his colleagues at Lytham. He was subsequently promoted to a post at the Coventry Land Registry. He did not tell colleagues at this office that he was gay and wished to reveal this fact in his own time. The employee alleged that whilst at Coventry he was subject to various acts of sexual orientation discrimination and harassment from his line manager. These included two particular incidents: the first was where the line manager told another colleague that the employee was gay, before he commenced work at Coventry. The employee was distressed when he heard that his line manager had done this. The second was where the line manager asked the employee "How is your partner, Chris? How is he?" at a dinner with colleagues. Again, the employee was uncomfortable that this unwanted and pointed remark had been made.

The Employment Tribunal upheld six allegations of direct sexual orientation discrimination (including the two above), five of which also amounted to harassment. The employer appealed to the EAT, on the basis that the Employment Tribunal had failed to have regard to the fact that the employee had come out in Lytham and the line manager knew of this. The EAT upheld the appeal and remitted the case to a fresh tribunal to consider the allegations. The employee appealed that decision.

The Court of Appeal held that the fact that the employee had come out in Lytham was a highly significant factor when assessing whether there had been discrimination. The Court noted that at any time, any one of the three hundred or more employees at Lytham could, in conversation with a colleague at Coventry, have revealed perfectly innocently that the employee was gay. The Court also stated that they would have been justified in assuming that the employee would have no objection to this. It was not suggested that he revealed his sexual orientation in Lytham in circumstances where those in receipt of that information were required or even requested to keep it a secret.

In relation to the first incident, the Court held that it would not be open to a tribunal to find that there was either direct discrimination or harassment. There was no detriment because, having made his sexual orientation generally public, any grievance made by the employee about the information being disseminated to others was unreasonable and unjustified. Even if the disclosure was unwanted, and the employee was upset, the effect could not amount to (as required under the legislation) a violation of dignity, nor could it properly be described as creating an intimidating, hostile, degrading, humiliating or offensive environment. The Court stated that these words are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment. It also stated that to describe this incident as the Employment Tribunal did as subjecting the employee to a "humiliating environment" when he heard of it some months later is a distortion of language which brings discrimination law into disrepute. The Court also noted that whilst a gay man might understandably be fearful of his sexual orientation being made public where a heterosexual man may not, where the gay man has already made his status public such that there is no reason to suppose that he will object, it was very difficult to see how revealing his sexual orientation could be held to be less favourable treatment.

The Court took a similar approach to the second incident. It was not a detriment for the purposes of direct discrimination. It was not enough that he was made to feel uncomfortable. In relation to harassment, the Court also stated that it had not been the line manager's purpose to humiliate or embarrass him and the Employment Tribunal could not equate an uncomfortable reaction to humiliation. The Court therefore dismissed the employee's appeal and the case was remitted to a fresh tribunal to consider the remaining four allegations only.

The Court acknowledged the submissions made in this case by the Equality and Human Rights Commission as to why it is important that gay people should be able to reveal their sexual orientation on a confidential basis and that breaching that confidence might involve a breach of Article 8 of the European Convention on Human Rights and might also involve sexual orientation discrimination. However, the Court noted that the circumstances in this case, where someone has chosen widely to reveal his sexual orientation, put the case into a different category.

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Employment Tribunal statistics

The Tribunals Service recently published its annual statistics for 1 April 2010 - 31 March 2011, showing that an overall total of 218,100 claims were made during 2010-11. This is an 8% fall compared to the previous year (but a 44% increase on 2008-09). Compared to 2009-10, there was a 15% fall in single claims and a 4% fall in multiple claims. Interestingly, the number of age discrimination claims rose by nearly one third. The total number of age discrimination claims during 2010-11 was 6,800 compared to last year's 5,200.

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Time off to train - not extended

From 6 April 2010, the former Government introduced a new right to request time off to study or train for employees working for employers with 250 or more employees. The right was due to be extended to all employers from April 2011.

The Coalition Government issued a consultation to gauge views of this legislation and whether it is improving training opportunities for employees. It has now published its response to the consultation, confirming that the right to request time to train will not be extended to employees of small and mediums sized organisations for the foreseeable future. The right will continue to be available to employees in large organisations with 250 or more employees. The position will be kept under review.

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SME's consider cutting holiday entitlement

More than a quarter of private sector employers are considering cutting holiday entitlement for staff in order to reduce employee benefit costs, according to new research conducted by insurance firm MetLife.

The study among small and medium-sized companies reveals that 27% of companies believe they are too generous with holidays and that 25% are considering cutting paid holidays.

The study also shows that more than a third of employees would be willing to work longer, but only if they receive a pay rise. Nearly six out of 10 employees believe they are unlikely to receive an annual pay increase in the next 12 months and 28% last had a pay rise more than two years ago.

Employers also said on average they would aim to cut around four days paid holiday in order to contain costs, with 36% of employers saying they are considering offering additional unpaid leave to staff. 

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