Employment Bulletin – November 2018

Theresa May wants ethnicity pay reporting to tackle discrimination

Prime Minister Theresa May has announced plans for a series of measures to remove the barriers facing ethnic minorities in the workplace

Mrs May has launched a consultation on ethnicity pay reporting in response to the recent Race Disparity Audit, which revealed significant disparities in the pay and progression of ethnic minority employees compared to their white counterparts.

In the first consultation of its kind, the government will invite employers to share their views on a mandatory approach to ethnicity pay reporting, since the number of organisations publishing information on the issue voluntarily remains low.

The consultation will run until January 2019.

Mrs May also wants to establish a pioneering Race at Work Charter, which will commit businesses to a set of principles and actions designed to drive forward a step-change in the recruitment and progression of ethnic minority employees.

Major organisations including NHS England, Standard Life Aberdeen, Norton Rose Fulbright, Saatchi & Saatchi, KPMG, RBS, the Civil Service and WPP are among the early signatories.

Mrs May said: "Every employee deserves the opportunity to progress and fulfil their potential in their chosen field, regardless of which background they are from, but too often ethnic minority employees feel they're hitting a brick wall when it comes to career progression.

"That's why I'm delighted to launch the Race at Work Charter, which gives businesses a clear set of actions to work towards in helping to create greater opportunities for ethnic minority employees at work.

"Our focus is now on making sure the UK's organisations, boardrooms and senior management teams are truly reflective of the workplaces they manage, and the measures we are taking today will help employers identify the actions needed to create a fairer and more diverse workforce."

Leading employment lawyers say the new measures could lead to a flood of tribunal claims relating to unequal pay and race discrimination.

Please contact us if you would like more information about the issues raised in this article or any aspect of employment law.

 

Woman 'side-lined' during maternity leave wins discrimination claim

A compliance officer with an international bank who was "side-lined" after having a baby has won her claims of maternity and sex discrimination.

The employee joined the bank as a senior compliance advisor in 2012. By 2015 she was being considered as a possible candidate for head of department.

In 2016, she went on maternity leave and maternity cover was recruited to take her place until she returned. However, the employee claimed that her duties were really carried out by a colleague who was junior to her at that time.

While on maternity leave, the employee contacted the bank about attending a quarterly meeting but was "strongly discouraged" from doing so. She attended a meeting prior to her return expecting a formal handover to her, but no such handover took place.

When she returned to work, she felt that her position had been eroded. Her maternity cover had left as planned but the junior colleague was now carrying out much of her work. She complained that she was being marginalised.

An internal talent review again identified her as a potential department leader, but this time suggested she would be ready in two or three years.

The employee, who still works for the bank, brought claims of sex and maternity discrimination to the Employment Tribunal, which found in her favour.

It found that while she was on maternity leave, her junior colleague "had taken over nearly the entirety of her role".

The Judge said: "When [the maternity cover] joined, rather than providing maternity cover by doing the Claimant's job, she provided support, advice and supervision to [the junior colleague] who continued to essentially undertake the Claimant's job.

"That is why there was no handover on the Claimant's return. There was no real intention of [the junior colleague] handing back the work. Since the Claimant's return, despite the protestations to the contrary, she and [the junior colleague] have been essentially at the same level.

"We find that the Claimant was side-lined on her return from maternity leave and her role was diminished. That is continuing, and we consider it is ongoing maternity discrimination."

The tribunal also found that the employee had been subjected to sex discrimination because she was not fairly considered for the head of department role in 2015. She and another female candidate had been described as "divisive". The term would not have been used about a man in similar circumstances and amounted to direct sex discrimination.

Company held liable for MD punching employee after works part

A company has been found liable for an assault by its managing director after a Christmas party that left an employee with brain damage.

The incident happened after the director organised and paid for a Christmas party for staff. After the party he arranged for taxis to take some of the attendees to a nearby hotel, where they were staying at the company's expense.

They all continued drinking and a work-related discussion turned to a new member of staff, who was said to be receiving higher pay than others.

The director began to lecture his employees, and when challenged by a manager, he punched him twice. The second punch knocked the manager to the floor where he hit his head and sustained a serious brain injury.

The issue before the High Court was whether the company was vicariously liable for the director's actions.

The judge found that it was not, because the hotel drinking session was entirely independent of the Christmas party and unconnected to the company's business.

The manager appealed, saying that there was enough connection between the managing director's position and his wrongful conduct to render the company liable under the principle of social justice.

The company argued that the director was a mere reveller at the hotel and was not acting within the course of his employment or his actual authority.

The Court of Appeal found in favour of the salesman. It held that the judge had been wrong to find that there was insufficient connection between the director's field of activities and the assault.

The drinks occurred on the same evening as the work event paid for and orchestrated by the director. He was present as managing director. His managerial decision-making having been challenged, he took it upon himself to exercise authority over his subordinate employees by summoning them and expounding the extent and scope of his authority with the intention of quelling dissent.

Giving judgment, the Judge said that the director "was purporting to exercise his authority over his subordinates and was not merely one of a group of drunken revellers whose conversation had turned to work.

"He asserted his authority in the presence of around 50% of [the company's] staff and misused that authority."

The amount of compensation the salesman should receive is still being assessed.

Cashier sacked during TUPE process was unfairly dismissed

A cashier who was sacked by her firm while its business was being taken over by another company has won her claim of unfair dismissal.

The cashier worked for a company (the transferor) which specialised in selling wine and beer.

It got into difficulties in December 2014 so another company (the transferee) agreed to purchase stock and take on any employees under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), which preserve an employee's terms and conditions when a business is transferred to a new owner.

The transferee then assumed responsibility for all employees except the cashier, who was dismissed by the transferor two days before the transfer took place. The dismissal letter said: "I am sorry to inform you that due to unforeseen circumstances concerning the business, we must inform you that our business will now cease to trade. As a result, we will unfortunately have to terminate your employment as from today."

The cashier brought a claim to the Employment Tribunal, alleging that the reason for her dismissal was the transfer of the business, which meant it was unfair under TUPE regulations. She said the transferee did not want her to work for them because she had a strained relationship with one of her colleagues.

The transferee's defence was based on a meeting on 9 December in which it said that the cashier had objected to the transfer and therefore under TUPE, her claim of unfair dismissal was not valid.

The tribunal found in favour of the cashier. It said it preferred her evidence that the transferee anticipated there would be ongoing difficulties in her working relationship with a colleague.

The Judge said: "It is for this reason that the Claimant was the only employee told that she was not wanted. She did not object to the transfer. The reason for the dismissal was the transfer. As such her contract of employment transferred and she was unfairly dismissed."

The Employment Appeal Tribunal has upheld that decision.

The case is a timely reminder that businesses cannot use transfers as an opportunity to dismiss employees they consider troublesome. TUPE offers significant protection and employers must ensure they follow the correct procedures to avoid costly claims and tribunal cases.