A group of BA flight attendants is claiming that the removal of discounted travel from strikers discriminates indirectly against employees based in Scotland, Ireland and mainland Europe who use the scheme to commute to and from Heathrow airport. The group, called Crew Defence, is representing 75 employees who are lodging cases with an employment tribunal in Reading and plan to sue for compensation if their claim is upheld.

This is a bold claim, but it may be successful in crossing the first hurdle of showing that BA are applying a provision, criteria or practice which is applied equally but puts (for example) Scottish people at a disadvantage. It would then be for BA to show that the treatment is justified. Much will depend on the nature and context of the scheme and its removal. To use an example, if a factory in Carlisle provides a free employee bus from Kendal, can a wannabe employee in Dumfries make a complaint?

The employer is likely to agree that its practice of failing to provide a bus from Dumfries affects far more Scottish people than English, but would argue that it has a legitimate objective (attracting and retaining employees), and it is proportionate to achieve that objective by providing that one bus from Kendal. The employer might well claim, if it is small, that it can only afford the one bus and clearly that bus will either set off in England or set off in Scotland. That itself could constitute justification, but would be bolstered by a rational explanation of why Kendal was chosen in the first place.

“Work” means employment, contract work, a position as a partner, a position as a member of an LLP, a pupillage or tenancy, being taken as a devil, membership of a stable, an appointment to a personal or public office, or the provision of an employment service; and the references in subsection (1) to offering a person work are, in relation to contract work, to be read as references to allowing a person to do the work.

This is, apparently, the terminology used for the Scottish equivalent of pupil barristers. But you can bet there’ll be a fair bit of head scratching by lawyers and HR staff when reading this section. A stable, if you were wondering, is a Scottish chambers, like this one. Apologies for this article to Usefully Employed readers North of the border.

We will review employment and workplace laws, for employers and employees, to ensure they maximise flexibility for both parties while protecting fairness and providing the competitive environment required for enterprise to thrive.

We will promote equal pay and take a range of measures to end discrimination in the workplace.

There are also pledges to extend flexible working rights to  all employees, Whitehall internships for under-represented minorities, and a national mentorship scheme for prospective BME business startups. As laudable as those principles are, there has been criticism of the lack of detail. The Equality Act and Human Rights Act aren’t mentioned at all.

The document is a far cry from previous statements by the Conservative party, and it may be that employment and equality contains some of the starkest differences between the coalition partners. See, for example,  the speech made by David Cameron just three years ago, where he pledged that a future Conservative government would withdraw from the EU’s Social Chapter. John Major negotiated an opt-out to this part of the Maastricht treaty in 1991, but in 1997 the Labour government signed up soon after coming to power. The Social Chapter requires states to outlaw discrimination on the basis of  sex, race, religion or belief, disability, age, sexual orientation, part time and fixed term working, and sets out a range of other protections such as the working time regulations. This inevitably raised questions of Cameron as to which of those pieces of discrimination legislation he’d do away with, which were never answered.

With the budget being the priority for the time being, we may well have to wait some time to see what is over the horizon, especially when (if ever) the Equality Act will come into force.

The full coalition document is here: http://www.cabinetoffice.gov.uk/media/409088/pfg_coalition.pdf

It’s a strange system where you get the manifesto after the election.

But the hard line demonstrated here at home is not necessarily mirrored abroad. Two recent stories:

FRANCE: Indecent images are fine so long as you still get your work done:

Peugeot Citroën discovered that one of their employees had saved a file enculade43.zip (those of you with good French will see where this is going) to a workplace hard drive. The zip file contained numerous indecent images, some including animals as participants. This was (unsurprisingly) contrary to number of staff policies and memorandums that had been circulated requiring staff to:

refrain from attacks on the personal dignity of their co-workers, and to exhibit the highest moral standards at all times

An employment tribunal ruling that he was fairly dismissed as a result was appealed all the way to the Cours de Cassation, France’s highest court. There, the employee successfully contended that there had been no adverse effects arising from his possession of the images. He had still got his work done, and there had been no impact on the IT systems. These arguments were upheld, and the court found the French equivalent of an unfair dismissal. The court did comment that if work suffered, or the IT system had been affected by, for example, a large download or a virus, then the employer might have been successful. It also seems that his behaviour was not precisely and specifically proscribed by the contract of employment.

This story was reported in the Register at this link. It concludes that the dismissal would undoubtedly have been fair in this jurisdiction, with which most readers will presumably agree. The judgment, in French, can be found here.

AUSTRALIA: Sexism fine after a few tinnies

Again reported by the Register, there’s a story from Australia, where an employee sabotaged a recruitment advertisement for Web Developer placed in a magazine. As well as requiring SQL experience and knowledge of Visual Basic, the ad was amended as below. Can you see the problem?

The perpetrator confessed, and although he had already left his employer, its Managing Director was quoted as saying:

“He was a young bloke who left a little while back, prior to Christmas. He wasn’t disgruntled or anything, he just mucked up… he got on the turps one night and it went from there. He fully understands what he has done and he’s very remorseful.”

Of course, the slow machinations of the European justice system means I now post on this subject on an annual basis only. In 2006 the proceedings were started in the English High Court, in 2007 the reference was made to the ECJ, and all related tribunal claims stayed, in 2008 the Advocate General announced his opinion, in March 2009 the ECJ promulgated its decision, referring the question of whether or not our regulations were lawful back to the English court.

See my post on the AG’s opinion for the legal background, but the most important question the High Court had to decide was whether the UK’s default retirement age of 65 (after which you can dismiss a person without them having any recourse to age discrimination remedies) was lawful. The message back from the ECJ had been that it could be, if sufficiently justified by “legitimate employment policy, labour market and vocational training objectives”.

The very brief answer is that yes, it was, but would not be so now. This means that the default retirement age (DRA) stands in respect of any claims brought over it to date, including many that still stayed in the employment tribunals.

Mr Justice Blake indicated however  that if the government hadn’t promised to review the level of the the DRA in early 2010 he would have ruled the provision unlawful, and that when that review is conducted a level of 65 would be unlikely to be justified. His judgment can be found here: Age UK, R (on the application of) v Attorney General [2009] EWHC 2336

The government’s announcement came only three days before the present case was heard.

Of course it’s impossible to know what transitional arrangements will apply to amendment of the DRA, but no doubt many employers will be receiving advice at present that they ought to hurry up with dismissing any unwanted 65+ employees that they might have. They key point will be whether, for the new DRA to apply, the date of the dismissal must fall before or after the legislative change, or the notifying of the Intended Retirement Date under the procedure.  If the former, then employers may have already missed the boat for giving the required six months notice, if the latter then we can expect a culling of 65 – 70 year old employees in the months ahead.

• Upper band: Was £15,000 – £25,000, now increased to £18,000 – £30,000. The most serious cases, such as where there has been a lengthy campaign of discriminatory harassment. Only in the most exceptional case should an award of compensation for injury to feelings exceed £30,000.
• Middle band: Was £5,000 – £15,000, now increased to £6,000 – £18,000. The middle band should be used for serious cases, which do not merit an award in the highest band.
• Lower band: Was £500* – £5,000, now increased to £? – £6,000. Less serious cases, such as where the act of discrimination is an isolated or one off occurrence. In general, awards of less than £500 are to be avoided altogether, as they risk being regarded as so low as not to be a proper recognition or injury to feelings.

The ranges are still large, of course, and tribunals have a wide range of discretion in determining the seriousness of any discrimination and the appropriate compensation payable.

A full report of Da’Bell will be posted as soon as it is available – we don’t know if the EAT specified a change to the minimum award in the lower bracket.

*a number of other decisions of the EAT have resulted in many lawyers regarding £750 as the actual minimum. Certainly any award falling below £500 is likely to be appealable.

“I wouldn’t put that on anyone. Sometimes it’s not down to lack of exercise. It could be a medical condition, like a thyroid problem. We put our drivers through rigorous and regular medical checks – this is enough.”

If Stagecoach ultimately dismissed a driver who wouldn’t or couldn’t shift the weight, would it be fair? The example is a useful one to describe the steps that employers should take when faced with employees with health problems that affect their ability to work.

Incapability is a potentially fair reason for dismissal under the Employment Rights Act 1996, and should be assessed by reference to “skill, aptitude, health or any other physical or mental quality”. Body weight is squarely placed in this category. But it isn’t as simple as “too fat, you’re fired”. In order for the employer to satisfy the statutory requirement that it has “acted reasonably in all the circumstances (taking into consideration the size and administrative resources of [its] undertaking) in treating that reason as a sufficient reason for dismissal.” For ill health, and weight in particular, any employer should be able to show that he has:

• Obtained medical evidence – weights of 20 stone plus ought to be the subject of medical treatment. Opinion should be sought from the employee’s GP as to what medical support could be given, and the timescales for improvement.
• Consulted with the employee, who should know the nature of the problem, help identify any steps the employee or employer can take to resolve the problem, and what timescales are to be kept to;
• Maintained any employee progress with guidance and warnings on non-compliance;
• when, and if, the situation seems to be moving towards dismissal follow the Acas disciplinary Code of Practice.

The letter sent to Stagecoach employees are therefore the first stage in this process – setting out to employees the problem. But it should also analyse the solutions short of dismissal, and begin a consultation process to save their jobs.

Some employees’ weight may relate to disability, and more creative employees might even try to suggest that obesity itself, even without any underlying condition, qualifies them for protection under the Disability Discrimination Act – an argument which could conceivably suceed. Nonetheless, a process described as above would, if done well, consider reasonable adjustments and alternative deployment in any event.

Irene Kudziela, branch manager of Manpower’s Pottsville office, allegedly told Blatt that a letter from her surgeon documenting her gender-reassignment surgery – along with a photograph of her genital area – would be necessary before she could return to Sapa.

Blatt, 28, said she found the request “repugnant” and “disgusting,” and declined to comply. She viewed the request as a form of sexual harassment, she added.

“I was shocked and disgusted,” Blatt said. “It felt like I was being reduced to a mere sex object. I was trying to work there in a dignified and private manner, but my dignity and privacy were constantly being violated.”

In addition to sexual harrassment, Blatt is bringing her case under disability discrimination laws: it would seem that Philly doesn’t provide protection based on gender reassignment. In the UK there is already specific protection against this sort of treatment under statute, and section 7 of the Equality Act, when enacted, will provide that:

A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing
physiological or other attributes of sex.

The tribunal has found in her favour today, finding harrassment and failure to make reasonable adjustments. See the full circumstances of the caseat the link above. Miss Dean was awarded £7,800 for injury to feelings, £1,077.37 for loss of earnings, and £137.75 for (presumably) an unfair dismissal basic award.

Decisions such as this are almost run of the mill for A&F. The company has hit the headlines in the US for banishing a Dallas employee to the stockroom for scoring a zero in the the company’s “hierarchy of hotness”, and in 2004 it settled a class action lawsuit from ethnic minorities accusing it of discrimination in employment and in its marketing materials. The New York Times reported:

Eduardo Gonzalez, the lead plaintiff and a senior chemistry major at Stanford University, said that when he applied to an Abercrombie store in Santa Clara, Calif., managers urged him to apply for the overnight stocking crew. Noting that his application was rejected, he said that when a store manager interviewed him and 13 other applicants at once, the manager overwhelmingly favored the two white applicants.

…

In an unusual step, the settlement calls for Abercrombie to increase diversity not just in hiring and promotions, but also in its advertisements and catalogs, which have long featured models who were overwhelmingly white and who seemed to have stepped off the football field or out of fraternities or sororities. Plaintiffs’ lawyers said they insisted that the company agree to add more diversity to its marketing materials so as not to discourage minorities from applying for jobs.

Wondering about that today I visited Abercombie.com, and looked at the Picture Gallery. All ten models are white. The same goes for the images on the ‘Mens’, ‘Womens’ and ‘Jeans’. In fact, to find a single ethnic minority you have to head over to their Kids website, where both teenage models featured are of Asian origin. Given that the shots on the main site are all half-naked, and all sexually suggestive, and the teens are (understandably) head/shoulders fully clothed shots, you can’t help wonder at Abercrombie’s boldness at segregating their minorities into the ‘cute’ rather than ‘sexy’ categories. For more invective about this vile organisation see Charon QC’s post back in June. All one can really do is hope that this whole experience has served Riam Dean well in her quest to become a lawyer.

And just for fun, check out the Top 11 diversity photoshop disasters.

Switalski claims she was forced out of her £140,000-a-year job in September 2007 following 18 months of bullying and harassment. A tribunal heard her manager Marrack Tonkin criticised her for choosing flexible hours that gave her more time with her children, one of whom had cerebral palsy and another Asperger’s syndrome. Tonkin was said to have become “fixated” with her working hours while a male colleague who had children with special needs was allowed to work from home to help care for them.

The tribunal was told Tonkin “had a particular difficulty” working with a senior woman older than himself and had been “dismissive” when Switalski complained that when her mother died the company demanded a death certificate so the cost of a cancelled business flight could be claimed on insurance. It was also alleged she was not allowed to join an all-male management committee despite her seniority and that while Tonkin took male colleagues out to lunch several times, she only shared a plate of sandwiches with him while he carried out a career review.

But once you ignore the figures this is (without at all minimising the impact on Ms Switalski) a fairly run of the mill sex discrimination claim, what she seems to have suffered is very similar to the experience of many women in the workplace.

The claim being made by Wolverhampton prison warder Amitjo Kajla has more unique features. Ms Kajla, 22, worked at a young offenders institution. Attractive, she worked exclusively with male offenders aged 15 -22. Needless to say she drew a few comments, and she has been criticised by her employer for dressing too provocatively. Her specially altered size 4 uniform was too ‘revealing’, said the prison, and she wore too much makeup and was too familiar with offenders. The Birmingham Post reports Warren Sullivan, a governor, telling a tribunal:

“[her] uniform was figure hugging and her jumper was sleeveless and tucked into her trousers. It accentuated the female form. The figure-hugging uniform she was wearing could have led to temptation for inappropriate behaviour among the inmates. They are all male aged between 15 and 22-years old. Many have experienced mental, physical and sexual abuse in their lives and the clothes and make-up that Ms Kajla was wearing was inappropriate.”

In addition Ms Kajla, for her part, says that she was called “a stupid little girl” for putting her security at risk when an inmate told her “Miss, you look sexy”, as well as that remarks were made about her appearance by other staff in front of inmates. A far cry from Prisoner Cell Block H.

Interestingly both the Birmingham Post and the Telegraph, who report the above contentions by Ms Kajla, suggest she is bringing a claim for constructive unfair dismissal. From her version of events it would seem that she ought to have included a claim for sexual discrimination, primarily for harrassment. To succeed on her constructive dismissal test she must show that the prison breached the implied term of mutual trust and confidence such to enable her to resign in response. Nowadays, there is also perhaps a requirement to show that the prison acted unreasonably – although this area of the law is still under some discussion. Contructive dismissal is a relatively high bar for an employee to cross. A claim of harrassment would simply need her to show that on the grounds of her sex, there was conduct which violated her dignity, or created an intimidating, hostile, degrading, humiliating or offensive environment for her.

We have to be careful when dealing with the selective choice of evidence yielded up by newspapers, but it seems to me that the prison may well have had reasonable grounds for requiring Ms Kajla to tone down her attractiveness. The actions of other staff may however be in question.

Finally on this thread, what are the employment law aspects for the waiting staff employed at this evening party that got out of hand? When he realised that the party that had hired his manor house as a venue bore more resemblence to the famous scene in Eyes Wide Shut than just the costumes, he very sensibly allowed any waiting staff to go home early. It’s almost as if he’d read about Bernard Manning’s antics in Burton and Rhule v De Vere Hotels [1996] IRLR 596.