Claimant was unfairly dismissed for using racially offensive term during a training session – employer must consider context of behaviour
In the recent case of Borg-Neal v Lloyds Bank Plc, the claimant attended a training session on race discrimination awareness for line managers. He asked a question during the session about how to handle a situation where the ‘N-word’ was used. He did not say ‘the N word’; he used the full word. He was dismissed for gross misconduct. The tribunal held that his dismissal was unfair. It acknowledged that the claimant’s use of language constituted misconduct but found that dismissal did not fall within the band of reasonable responses given the context in which the comment was made and the fact that the claimant immediately and repeatedly apologised for having used the full word.
His claim for discrimination arising from a disability also succeeded. He suffered from dyslexia and this was found to be a disability. He claimed that this condition had caused him to use the full word and prevented him from being able to call to mind an alternative phrase quickly.
This case illustrates the importance of employers looking at all the surrounding circumstances when deciding on the appropriate sanction in a disciplinary context. Employers have the band of reasonable responses to play with but the band is not ‘infinitely wide’. Behaviour needs to be viewed in context and sanctioned appropriately.
Part-time workers rights
In the UK, part-time workers have a number of legal protections to make sure they are treated fairly and not less favourably than comparable full-time workers:
- The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 is the key piece of legislation concerning the rights of part-time workers in the UK. Its main objective is to ensure that part-time workers are not treated less favourably than their full-time counterparts unless such treatment can be objectively justified.
- Part-time workers should receive the same rates of pay as comparable full-time workers (calculated on a pro rata basis). Part-time workers should also have the same opportunities for career progression and training as their full-time counterparts.
- If a part-time worker believes they are being treated less favourably than a comparable full-time worker, they can ask their employer for a written statement of reasons. A response should be provided within 21 days.
- Part-time employees can bring an employment tribunal claim alleging less favourable treatment when compared to full-time employees. Employers can defend claims if they can show that the treatment was a proportionate means of achieving a legitimate aim. Tribunals are able to award compensation in these cases which can include loss of earnings but not injury to feelings.
- More women are part-time workers than men. This is a fact which tribunals take judicial notice of – there is generally no requirement to produce statistical evidence. It is therefore possible for part-time female employees to bring any claim for less favourable treatment as an indirect sex discrimination claim rather than one under the part-time workers legislation. This allows female part-time workers to claim injury to feelings as a head of compensation (something which is not available in part-time workers claims themselves).
Introduction of variable working pattern was indirect sex discrimination but could be justified on the facts
In the recent case of Dobson v Cumbria Partnership NHS Foundation Trust, the respondent changed its work schedules, requiring the claimant, a community nurse and mother of three (with two disabled children), to work different days and weekends. The claimant couldn’t follow this new schedule and claimed indirect sex discrimination – arguing that the flexibility required within the new schedule placed her and other women at a disadvantage when compared with men, as more women than men have caring responsibilities.
The first time the employment tribunal looked at her case, they didn’t agree that the new work schedule was indirectly discriminatory against women- they said that the claimant had not shown that women as a group were disadvantaged by the policy. However, the Employment Appeal Tribunal disagreed, pointing out that the tribunal should have acknowledged that women, often being the primary caregivers, might find it harder to adapt to certain work schedules than men. The tribunal were still able to take judicial notice of the ‘childcare disparity’ (that more women than men have caring responsibilities) without the claimant needing to produce evidence of this.
The case went back to the tribunal, who then agreed the new work schedule was harder for the claimant and other women. Still, it decided that the change in schedule was justified on the facts because it was necessary for providing flexible services. So, the claimant’s claim did not succeed.
This case teaches us two important things:
- Tribunals can recognise that policies requiring work during evenings or weekends can be tougher for women because of caregiving duties without a claimant having to bring evidence to support the position.
- Employers are allowed to have flexible work schedules – they will not always be found to be unlawful discrimination, but they must have a strong reason for it and should consider other options that might achieve the same goal without being discriminatory.
Three examples where discrimination can occur even when the employee does not have the relevant protected characteristic
UK discrimination laws identify nine specific characteristics that it’s illegal to discriminate on the grounds of: age, gender reassignment, marriage and civil partnership, pregnancy, disability, race, religion or belief, sex and sexual orientation.
It’s important to know that even if an employee doesn’t personally have one of these characteristics, they can still say they were discriminated against. This makes it tricky for employers to always know when they might be discriminating.
Here are some examples to be mindful of:
- Perceived Discrimination: This happens if an employer wrongly thinks an employee has one of these characteristics and treats them unfairly because of it.
- Victimisation: If an employee feels they’ve been treated badly because they supported a colleague’s complaint about discrimination, they may have a claim for victimisation even if they do not have the protected characteristic themselves.
- Discrimination by association: This happens when someone is treated less favourably because they are associated with someone with a protected characteristic. This can be direct or indirect. Direct discrimination means treating them less favourably because of the person they’re associated with. Indirect discrimination means having a rule that puts them at a disadvantage because of this association. However, if the employer has a really good reason for the rule, it might be justifiable. This type of discrimination is often seen in cases related to disability.
The case of Follows v Nationwide Building Society is a good example of associative discrimination. The respondent had a rule against full-time work from home, which was difficult for the claimant as she cared for a disabled person. Because the respondent could not justify the rule, they ended up having to pay the claimant over £345,000 in compensation for this and her other claims. This case shows how important it is for employers to think carefully about their policies and how they might affect their employees.
Guidance on the use of anonymised statements in disciplinary investigations
When employers are dealing with misconduct allegations, it’s crucial to conduct a thorough investigation. In some cases, witnesses who are interviewed as part of an investigation will ask to remain anonymous. How might this impact on the fairness of any resulting dismissal? If the investigation results in a dismissal, reliance on an anonymous statement could make the dismissal process unfair.
Keeping a witness’s identity secret means the employee being investigated doesn’t get all the information. This can lead to unfairness because the employee might want to say that the witness doesn’t like them or has a reason to lie. Without knowing who the witness is, the employee is at a disadvantage.
Witnesses shouldn’t be automatically given anonymity; it should only be an option if they ask for it. If a witness wants to stay anonymous and their reasons are not strong, try to find the information another way, like through CCTV or recording. Using an anonymous statement should be your last resort, only if you really need that witness’s information and can’t get it any other way.
If you do decide to keep a witness anonymous, follow the steps outlined in the Linfood Cash & Carry Ltd v Thomson case:
- Get a detailed written statement from the witness, explaining how they saw the incident and why they were there.
- Check if the witness has any issues with the employee or any reason to make up a story.
- Do more investigations to see if you can prove or disprove what the witness said.
- Share the witness’s statement with the employee under investigation, but take out any details that could give away who the witness is.
Government publishes response to proposal on reforming paternity leave and pay
The government has published a response to a 2019 consultation on proposals for reforming family related leave and pay.
The response sets out substantive changes to paternity leave which will be implemented in due course:
- Employed fathers and partners will be able to take the current entitlement of up to two weeks’ statutory paternity leave in two separate blocks of one week of leave if they wish, rather than having to choose between taking one week or two weeks.
- Employed fathers and partners will be able to take their statutory paternity leave at any time in the first year rather than just in the first eight weeks after birth or placement for adoption.
- Currently, notice of the date on which an employee wants paternity leave to start has to be provided 15 weeks before birth. The government will change the notice requirements for statutory paternity leave to make these more proportionate to the amount of time the father or partner plans to take off work. It is proposed that fathers will need to give 28 days’ notice before each period of leave they intend to take, although the notice of entitlement will still need to be given 15 weeks before birth.
Although the consultation also considered other family-related leave, including maternity leave and pay, maternity allowance, and unpaid parental leave, no legislative changes are proposed to these entitlements.
An introduction to the different types of disability discrimination
The legal rules relating to disability discrimination in employment are set out in the Equality Act 2010.
There are six different types of disability discrimination covered by the Equality Act 2010:
- Direct Discrimination: This happens when an employer treats someone less favourably just because they have a disability. This kind of discrimination can’t be justified or excused.
- Indirect Discrimination: This is when a rule or policy (called a provision, criterion or practice, or PCP) applies to everyone but puts people with a certain disability at a disadvantage. If an employer can show a good, necessary and proportionate reason for the rule, it can be justified.
- Discrimination Arising from Disability: This occurs when an employer treats a disabled employee unfairly because of something connected to their disability, and the employer can’t show that this treatment was justified. The employer must know, or should know, that the employee has a disability.
- Duty to Make Reasonable Adjustments: If a rule (PCP) or a physical feature of the workplace puts a disabled employee at a significant disadvantage compared to non-disabled people, the employer must take reasonable steps to remove that disadvantage. This duty comes into play if the employer knows, or should know, about the employee’s disability.
- Harassment on grounds of disability: This occurs where the employer engages in unwanted conduct related to disability. The conduct has the purpose or effect of violating the disabled employee’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the employee.
- Victimisation: This happens when an employer treats an employee badly because they’ve made a complaint about disability discrimination, or have helped someone else make a complaint.
An awareness of each of these different forms of discrimination is crucial for employers to make sure they understand the scope of protection afforded to disabled employees.
TUC to partner with leading employment lawyers, academics, politicians and technologists to fill legislative gap in AI regulation at work
The Trade Union Congress (TUC) has launched a new AI task force and is calling for new legislation to safeguard workers’ rights and to make sure Artificial Intelligence (AI) benefits all.
It is putting together a group of specialists with the aim of drafting and publishing an ‘AI and Employment Bill’ in early 2024. The TUC will then lobby for it to become law. Areas to be covered are likely to include:
- A legal duty for employers to consult trade unions on the use of “high risk” and intrusive forms of AI in the workplace.
- A legal right for all workers to have a human review of decisions made by AI systems so they can challenge decisions that are unfair and discriminatory.
- Amendments to the UK General Data Protection Regulation (UK GDPR) and Equality Act 2010 to guard against discriminatory algorithms.
The TUC is worried that, without legislation, the UK will increasingly lag behind other countries in its regulation of AI. The EU, and other countries, have already drafted specific legislation to properly regulate AI at work.
Dismissal occurs when it is communicated – even if the communication is in error
A recent tribunal case provides a useful reminder that, when someone is fired, it counts from the moment they are told by their boss. Usually, this happens in a meeting or a letter that clearly says that employment is being terminated. But what if someone just gets a P45 in the post instead?
This happened to the claimant in the case of Daniel v GE Spence & Sons. The claimant was off sick with a bad back after getting hurt at work. He was talking with his boss about possibly coming back to work and getting a doctor’s note to show what he could do. Whilst these discussions were ongoing, he received his P45 in the post. The respondent said it was a mistake but the tribunal said getting the P45 was clear enough—it meant he was dismissed. The court also said that once the P45 was received, the respondent couldn’t take it back unless the claimant agreed, even if it was a mistake. In the end, the claimant got over £26,000 because he was unfairly dismissed.
This case reminds employers to be really careful when handling employee matters, especially paperwork. Any letters or forms should only be sent when the employer is sure of their decision. And if a business has someone else handle their payroll (like in this case), they should only instruct them to send important forms like the P45 after they’ve made sure the employee is really being let go.
Covert monitoring of employees
It has been reported that a boss in Spain was arrested after a tracker was planted on the car of an employee as part of a long-running row over sick leave. The employee unexpectedly discovered the GPS device, planted on the underside of his vehicle, as he was washing it.
It goes without saying that covert monitoring of employees in this way is never likely to be fair or reasonable. Quite apart from the likely criminal implications, if this incident had occurred in the UK, the employer would be facing potential claims from the employee for harassment on grounds of disability and, if the employee resigned in response to finding the device, a very strong claim for constructive dismissal. Fitting a covert tracking device is highly likely to be a clear breach of the implied term of mutual trust and confidence in almost every case.
Disclaimer: This post is for information purposes only. Reasonable steps have been taken to provide accurate information, but no responsibility is taken by the author (Hunter Law Ltd) for any consequences arising from its usage.
This post is not intended to and does not constitute legal advice and you should instruct a solicitor formally should you require this.