Proving Dismissal Is A Proportionate Means Of Achieving A Legitimate Aim

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Discrimination arising from disability is unlawful in the UK and employees are protected by the Equality Act 2010 (EqA). Under Section 15 of this key piece of legislation, it states that;

“(1)A person (A) discriminates against a disabled person (B) if—

(a)A treats B unfavourably because of something arising in consequence of B’s disability, and

(b)A cannot show that the treatment is a proportionate means of achieving a legitimate aim.”

Therefore, the burden of proof is on the employer and if they wish to establish justification under this section of the EqA, they will need to prove that the discriminatory treatment was reasonably necessary to them achieving their aim.

When a case is taken to the Employment Tribunal (ET), the judge will have to weigh the discriminatory effect of the treatment against the needs of the employer and determine whether one outweighs the other. Ultimately, the more serious the impact of the treatment, the more well-founded the justification of the treatment must be in order for it not to be discriminatory. Should there be a less discriminatory way of achieving the aim, it will be incredibly difficult for an employer to justify the discrimination under Section 15(1)(b).

Disability discrimination cases can be even more complicated when they involve dismissal and the ET will need to focus on the dismissal itself as well as the process by which the dismissal was achieved. In the recent case of Department for Work and Pensions v Mrs Susan Boyers, the respondent claimed that the claimant’s dismissal was a proportionate means of achieving a legitimate aim. However, the ET did not agree. 

What happened in this case?

The claimant worked for the respondent from September 2005 until January 2018 when she was dismissed. 

In December 2013, the claimant was referred to the respondent’s occupational health

service concerning the migraines she was suffering from. Around the same time, the claimant raised an issue about a colleague who she said had been bullying and harassing her. 

In January 2014, the claimant asked to move desks to be away from this colleague, but this was refused. In April 2014, she asked again and said the increase in her migraines could be a result of stress arising from her colleague’s behaviour. She also disclosed that she had been treated for depression, stress and panic attacks as a result of her colleague’s behaviour. 

During 2015 and 2016, the claimant continued to ask to move to a different team or different floor of the building and these requests were all refused. In July 2016, the claimant became upset at work whilst her line manager was on holiday. Another manager intervened and arranged for her to be moved to a different floor immediately. Then, in January 2017, the claimant was moved to a different team. 

In February 2017, after a difficult call with a customer, the claimant broke down at her desk. She contacted her GP surgery and received a note that stated she was unfit for work due to work-related stress. The claimant did not return to work until she undertook a work trial at another location later that year. 

In March 2017, the claimant submitted a grievance about how the issues of bullying, stress and illness had been handled by the respondent. She stated that she could not return to work anywhere in the centre where she previously worked, but she could see herself returning to work at another location. After investigation, this grievance was not upheld.

The claimant’s line manager offered her a work trial at the Eston centre in June 2017 and she said she was willing to return to work at Eston. The work trial started in September 2017 and by October 2017, the respondent’s managers decided that the work trial had not been a success and the claimant would have to return to work in her previous location. After receiving this news, the claimant was ill with anxiety and depression, and she obtained a GP note stating that she was unfit for work due to work-related stress.

In January 2018, the claimant was dismissed and the reasons for this decision were set out in writing. These reasons included that the trial at Eston had not succeeded and the claimant refused to return to work in other centres.

The claimant brought various claims to the ET under the EqA relating to both the termination of her employment and the way she was treated during her employment. 

What did the ET decide?

During the ET’s first judgment, it was found that the claimant’s dismissal was unfair and it was declared discriminatory under the EqA. In particular, it found that dismissal was a disproportionate response for the purposes of Section 15(1)(b) in the EqA. 

The respondent argued that it had fairly and lawfully dismissed her for capability reasons. They appealed this decision and questioned whether the ET erred when concluding that the dismissal could not be justified as a proportionate means of achieving its two legitimate aims of; protecting scarce public funds/resources and reducing the strain on other employees caused by the claimant’s absence.

The Employment Appeal Tribunal (EAT) upheld the appeal and remitted the case to the same ET to assess whether the dismissal was proportionate to the respondent’s legitimate aims. The EAT concluded that the ET had wrongly focused on the process leading up to the dismissal decision without properly examining whether the dismissal itself was justified by reference to the aims relied upon by the employer. 

Upon remission, the ET reached the same conclusion that the respondent failed to show that its decision to dismiss the claimant was a proportionate means of achieving the identified aims. The ET found that the respondent failed to evaluate the claimant’s work trial in the different role and location, which, if properly evaluated, might have avoided dismissal. The ET concluded for a second time that the claim of discrimination arising from disability was well-founded.

The respondent appealed the ET’s second judgement again stating that the ET erred in law and/or acted perversely in not finding the claimant’s dismissal to have been proportionate.

This second appeal was dismissed. 

Getting some advice about discrimination and dismissal claims in London 

The case above is a clear example of how an ET will weigh up the reasonable needs of an employer against the discriminatory effect of the treatment experienced. Ultimately, should suitable alternative work be available to an employee, there may be a non-discriminatory alternative to dismissal and an employer’s failure to consider this alternative can result in the dismissal being discriminatory and unfair in the eyes of the law. 

If you are experiencing discrimination in the workplace or you think you might have been unfairly dismissed, do not hesitate to contact Damian McCarthy. Damian has extensive experience in employment law and he is regularly instructed to assist with complex claims of discrimination and dismissal. Over the years, Damian has represented clients at the highest levels and he is known for achieving outstanding results. You can trust Damian will always have your best interests in mind and his client-focused approach makes him very popular. To find out more about how Damian can assist you, explore the rest of his website today.

Making Reasonable Adjustments In The Workplace

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Disability is one of the listed ‘protected characteristics’ in the Equality Act 2010 (EqA) and if you suffer unfavourable treatment due to having a disability, you may be able to take a claim to the Employment Tribunal. The EqA recognises and protects against several types of discrimination, including; direct discrimination, indirect discrimination, harassment and victimisation, and employees are protected during every section of UK employment. 

Uniquely, when making a disability discrimination claim, employees are also protected against any discrimination that occurs when employers do not make reasonable adjustments in the workplace. Under Chapter 2 of the EqA, all employers have a duty to make reasonable adjustments in the workplace to ensure disabled employees are not at a substantial disadvantage when compared to non-disabled employees. Failure to comply with this duty can result in a discrimination claim being made. 

What are ‘reasonable’ adjustments?

An employer’s duty comprises three requirements;

“ (3)The first requirement is a requirement, where a provision, criterion or practice of A’s 

puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

(4)The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

(5)The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.                                                    “

Several factors will influence what adjustments are considered to be ‘reasonable’, such as; the cost and practicability of making an adjustment, the size of the organisation, and the resources available to the employer. 

It is important to note that making reasonable adjustments applies to all areas of UK employment. Not only do employers have a duty to make adjustments during the period of employment, but they also have a duty during the recruitment and dismissal processes too. Many employees do not realise this is the case and they may be at a disadvantage when compared to non-disabled employees. 

An example of reasonable adjustments not being made

In the case of Knightley v Chelsea & Westminster Hospital NHS Foundation Trust, the claimant was employed as a Lead Midwife for Mental Health in 2009. She played a key role in maintaining high standards of care for women experiencing mental health problems during pregnancy and the postnatal period. 

From around 2007, the claimant suffered from stress, anxiety and reactive depression, and she was taking prescribed antidepressant medication. Problems with the claimant’s attendance started towards the end of 2012 and in 2014, a flexible working arrangement was implemented to help improve the claimant’s attendance record. 

The claimant was then off work from August 2015 to September 2016 on the grounds of ill health. Upon returning to work, she was temporarily deployed to the antenatal clinic to facilitate the resumption of her substantive post. She was then off work on the grounds of ill health from March 2017 until the termination of her employment. 

There was a long-term sickness absence hearing in January 2018, this was the second hearing of this kind that the claimant had been involved in. The claimant was reminded that this hearing could result in her dismissal. During the hearing, the claimant said she was unfit to work indefinitely, she no longer felt able to return to work and there were no adjustments which would enable her to do so, and she wished to apply for ill-health retirement. 

The outcome of the hearing was that the claimant would be dismissed with 12 weeks’ notice on grounds of capability. A letter was sent to the claimant summarising the reasons for dismissal and notifying her of her right to appeal within ten working days of the letter. The claimant asked for a two-week extension of time to appeal, but this was refused. She submitted a summary appeal, but this was not considered by the respondent as it was out of time. This led to the claimant making a claim for unfair dismissal and discrimination arising out of disability. 

An Employment Tribunal upheld part of her claim and found that the employer had failed to make a reasonable adjustment to its procedure when dismissing the employee because it did not allow her an extension of time to appeal. It provisionally awarded the claimant £3,000 for injury to feelings. However, it also found that the claimant would have been dismissed in any event. So, ultimately, the dismissal was procedurally and substantively fair and proportionate. Therefore, her claims for unfair dismissal and discrimination arising out of disability were dismissed. 

The claimant appealed the Tribunal’s decision on 4 grounds. She argued that the Tribunal’s finding that she was unreasonably denied an opportunity to appeal against her dismissal should have led to her other claims succeeding. She said that the Tribunal had not sufficiently explained how her dismissal could be fair or proportionate given this finding.

The Employment Appeal Tribunal dismissed the appeal and found that this was not a case in which an appeal would have prevented the dismissal of the claimant. Given the strength of the reasons for dismissal, the lack of any realistic alternatives to dismissal and that the appeal would not have made any difference in the outcome, the lack of such an appeal did not render the dismissal disproportionate. 

What can be learnt from this case?

Although the claimant in this particular case did not win her claim, it highlights the importance of always making reasonable adjustments. Making reasonable adjustments during the dismissal process is equally as important as making reasonable adjustments during employment. If some of the circumstances were different in the case above, such as if there was a chance the appeal against the dismissal would have been successful, the claimant might have won her unfair dismissal and discrimination claim. 

This case also highlights how crucial it is that all employers carry out a fair procedure when dismissing an employee. To ensure fair practice is maintained, all employers must abide by two key areas of law and a dismissal should be made on fairgrounds in which there is clear evidence of employee wrongdoing or be made in regards to either an issue of redundancy or underperformance at work. Fairness is always a key component in an employee being properly dismissed and it is something that is taken into consideration in all unfair dismissal claims. 

Speaking to an employment law expert about disability discrimination claims

If you have any questions about disability discrimination and the duty an employer has to make reasonable adjustments, do not hesitate to contact Damian McCarthy. Damian has more than two decades of experience helping clients who are being discriminated against in the workplace and he is regularly instructed on high-profile and complex discrimination cases. You can rely on Damian to provide you with the sound employment law advice you need. 

Should you want to take a claim to the Employment Tribunal, Damian will work with you to develop a winning strategy that will get you results. Damian will be committed to winning your claim and he always lives up to his reputation of being a tough and effective employment law specialist. You can find out more about how Damian can help you on his website and feel free to get in touch today to arrange a free initial assessment with Damian.

Can Diversity Training Be Discriminatory?

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It is incredibly common for companies to require their employees to attend diversity training courses these days, and there are several benefits to implementing policies and procedures that create a culture where equality is valued. This type of training is designed to eliminate discrimination and harassment in the workplace, and a sufficient diversity and inclusion training program can create a safer work environment for all employees. 

Unfortunately, not all companies will conduct this important training course in the right way though and in some circumstances, diversity training can even be discriminatory. It is crucial that all companies ensure their training courses do not go ‘stale’ and that they are delivering training that does not make their employees feel uncomfortable. The way sensitive training of this kind is conducted can easily create an offensive environment and instead of providing a company with legal protection, inadequate diversity training can result in a discrimination claim being made against them. 

An example of when diversity training was discriminatory

In the case of Ms Theresa Georges v Pobl Group Ltd, the claimant was required to attend an equality and diversity training course as part of her induction training. The respondent has an Equality, Diversity and Inclusion Policy which mandates induction training for staff on equality, diversion and inclusion. This course was attended by 16 employees including the claimant. 

The course was taken by Lisa Hearn who had rolled out the course about 180 times by then and had been a trainer for approximately 8 years. 

During the course, Ms Hearn delivered some training on discriminatory words. The slides for this part of the course raised the question ‘what are discriminatory words?’. They made the point that people find different words offensive and just because you do not find something offensive yourself it does not mean that no one else will. 

Ms Hearn conducted an exercise whereby she wrote the words ‘nigger’ and ‘paki’ in their full form on a flipchart. She then asked the attendees to shout out the most derogatory and offensive words that they could think of. These words were then added to the flip chart and Ms Hearn put ticks next to each word that was shouted out more than once. The word ‘nigger’ was shouted out three times and there were three ticks next to it. 

After the exercise, Ms Hearn asked the employees what the purpose of the exercise was. It was agreed that the exercise was to illustrate that some people found some discriminatory words offensive but that they did not have the same impact on everyone. She also acknowledged that the exercise can be uncomfortable and asked everyone if they were ok. 

The claimant felt in a state of shock after the exercise and left the building. She eventually returned and completed the rest of the training course. 

Following the course, the claimant did not return to work. She requested annual leave, which was not authorised, but she did not come in the next day. She called her line manager and explained that she was unable to come to work because of the equality and diversity training. The claimant then wrote a letter of complaint to HR and she was signed off sick with stress. 

Ben Hurrell, Senior HR Business Partner (Learning and Development) investigated the complaint and did not uphold the grievance. The claimant appealed against the grievance outcome and the appeal officer was Lucie Thomas, Director of Learning and Development. She found that everyone she had interviewed had spoken positively about the training course and she did not uphold the appeal. 

The claimant claims that the use of the word  ‘nigger’ in the training environment amounted to racial harassment and she made a claim to the Employment Tribunal. 

The Tribunal found that the claimant was genuinely shocked and distressed following the discriminatory words training, and the use of the ‘n’ word in a group context by the trainer and by others in the group had caused her to feel this way. The unanimous decision of the Tribunal was that the claim for racial harassment was well-founded. 

The use of the full ‘n’ word had the effect of creating a degrading and offensive environment for the claimant and of violating her dignity. This word is a deeply loaded and offensive word with distressing racial connotations and it was found that it caused the claimant to feel deeply offended and uncomfortable. 

The Tribunal also found that the method of delivery for this training course was risky and the course was conducted insensitively. Any protective measures employed would not soften the blow to a person undertaking the training course who has heard words which were loaded and deeply racially offensive. Encouraging employers to say deeply offensive words was a crude and unnecessary way of delivering the training and a more sensitive means of delivering the message could have been employed which would still deliver the stated objective. 

It was concluded that the claimant was harassed on racial grounds and there will be a hearing to consider compensation. 

What employees should know about discrimination claims 

The Equality Act 2010 (EqA) covers issues involving discrimination at work and it recognises several different forms of discrimination. Direct discrimination, indirect discrimination, harassment and victimisation are all protected against, and this key piece of legislation makes it very clear that employees should not suffer unfavourable treatment due to having a ‘protected characteristic’. You can find a list of these protected characteristics under Section 4 of the EqA. 

Whilst for some employment law claims, you will need to have been employed continuously for a period of 2 years or more, such as unfair dismissal claims, this is not the case with discrimination claims. The EqA provides protection for every section of employment, including both recruitment and training, and discrimination can be generated by different sources. For example, the discrimination in the case above was not the employer’s actions, however, the employer was still held responsible and this is called  ‘vicarious liability’. 

If you are being treated in a manner that causes you either emotional or physical suffering, you may be able to make an Employment Tribunal claim. The majority of discrimination claims need to be filed within three months less one day from the date that the discriminatory comments or behaviour happened. It is beneficial to seek legal advice as soon as possible after the discrimination occurred, this can help to prevent any problems relating to time limits. 

Getting some employment law advice in London

Should you wish to speak to an employment law specialist about a situation in the workplace that has violated your dignity or created an intimidating, hostile, degrading, humiliating or offensive environment for you, be sure to contact Damian McCarthy. You can confidently turn to Damian for employment law advice in London knowing he regularly instructs on high-profile discrimination cases and over the years, he has built a reputation for fighting “tooth and nail” for his clients. You can trust he has the skill required to assist you with your employment law issue and he is known for his client-focused approach. 

With more than two decades of experience, Damian has extensive knowledge of UK employment law and he can provide you with the sound legal advice you need. If you choose to make a claim, whilst working with you to develop a winning strategy, Damian can guide you through any difficulties you may face. He will ensure you are prepared for all eventualities and he has turned very difficult cases into winning cases. For a free, confidential and no-obligation discussion, feel free to get in touch with Damian today.

When Does The Protection Against Disability Discrimination Begin To Apply?

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In the UK, it is unlawful for employees to suffer unfavourable treatment due to having a disability and the Equality Act 2010 (EqA) provides protection for every section of UK employment. Disability is a protected characteristic in this key piece of legislation and therefore, an employee can bring a discrimination claim to an Employment Tribunal if they are treated unfairly because they are disabled. There are different types of disability discrimination mentioned within the EqA too; direct discrimination, indirect discrimination, harassment and victimisation, and the UK workforce are protected by this legislation from all of them. 

Under Section 6 of the EqA, disability is described as;

“ (1)A person (P) has a disability if—

(a) P has a physical or mental impairment, and

(b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.
” 

This definition is relatively wide and it extends to a range of conditions, including certain medical conditions that are listed under Schedule 1, Paragraph 6 including; cancer, HIV infection and multiple sclerosis.

Whilst it is very clear who the EqA protects, it is not as clear when the protection actually begins to apply. For example, in the case of Bennett v Mitac Europe Ltd, the Employment Appeal Tribunal had to establish when the protection against discrimination because of cancer applies. 

What happened in Bennett v Mitac Europe Ltd?

The claimant, James Bennett, made a case that he was dismissed because of his manager’s disability.

Not long after being recruited, Stuart Balaam, Mr Bennett’s manager, was admitted to the hospital with a suspected heart attack. Following this, he sent an email to his colleagues saying he underwent various tests and has a growth on one of his kidneys. He also said he needed to undergo a biopsy to see what the growth is. He then met with the EU Business Head, Ms Huang, and informed her that he expected one of his kidneys would have to be removed. From this moment, he said that her attitude towards him changed. 

Mr Balaam underwent a biopsy and later received a diagnosis of cancer. He was told he would have to undergo an operation and he informed Ms Huang of this straight away. 

After some concerns about the performance of the business and the performance of both Mr Balaam and Mr Bennett, they were both dismissed with immediate effect. The dismissal letters they received said their dismissal was due to “poor performance”. However, Mr Bennett did not think that this was the case and he brought a claim to the Employment Tribunal. 

The Employment Tribunal dismissed the claimant’s claim of direct disability discrimination. The judgment stated; “The claimant’s claim of associative direct discrimination in respect of his dismissal on the grounds of the protected characteristic of the disability of Stuart Balaam is not well-founded.”.

This decision was appealed by Mr Bennett and the Employment Appeal Tribunal later found that the “Tribunal did not note that even if performance was the primary reason for dismissal it did not preclude the possibility that Mr Balaam’s disability was also a material cause.”.

One of the biggest considerations made by the EAT related to when the respondent knew Mr Balaam was disabled. The EAT stated that “an employer’s attitude to a person who is unwell, but not known to be disabled, could be relevant to determining the reason for the treatment of the person once it becomes known that the ill health constitutes a disability”.

The email Mr Balaam sent to his colleagues is of significance in this case as it could be considered the moment the claimant was first disabled due to having cancer and also the first the respondent knew of this disability. 

The EAT determined that this matter now requires remission to consider the date upon which the employer had actual or deemed knowledge of Mr Ballam’s disability and, in turn, whether the claimant was discriminated against because of his manager’s disability. 

When does protection begin to apply?

Chapter 2, Section 2.18 of The Equality and Human Rights Commission code of practice states that “Cancer, HIV infection and Multiple Sclerosis are deemed disabilities under the Act from the point of diagnosis.”. However, the word ‘diagnosis’ does not appear in the EqA and this is where the complication lies. 

Judge James Tayler in the case above said “it is important to distinguish between a person having cancer and having been diagnosed as having cancer. It is the former that is protected.” He also said that “if there is any doubt, the statute prevails over the guidance.”. 

It is important to note in situations where there is some confusion as to when protection against disability discrimination begins to apply, a person can actually be subject to discrimination because they are perceived to have a disability. In this case, there would be no diagnosis date and therefore, it begs the question that an employee could still be discriminated against because of a disability when it is thought that the disability will arise at a later date. 

Ultimately, many employment law specialists agree that the knowledge of a prospective disability can result in an employee being treated unfairly before they have received a formal medical diagnosis. In these circumstances, it is thought that employees should receive protection from the EqA in the same way they would if they had already been diagnosed. 

When making a discrimination claim similar to the one above whereby discriminatory behaviour may have taken place prior to an official diagnosis, it will be up to an Employment Tribunal to determine whether or not this is in fact disability discrimination in the eyes of the law. It is recommended that you seek legal advice should you find yourself in a situation where you think you have been discriminated against and an employment law specialist will be able to provide you with sound guidance tailored to your individual circumstances. 

Speaking to a specialist about a disability discrimination claim

It is fair to say that employment law can be quite complex and if you are unsure whether you may be able to bring a claim to the Employment Tribunal, do not hesitate to contact Damian McCarthy. Damian is regularly instructed on high profile discrimination cases and he has many years of experience handling complex employment law issues. Regardless of what discriminatory behaviour you have experienced, Damian will work hard to understand your case and achieve the results you were hoping for.

The biggest law firms in the UK regularly hire Damian to represent their clients and he has earned a reputation as a tough and effective employment law advocate. Not only will Damian represent you fearlessly, but he will always have your best interests in mind when assisting with your discrimination case. With comprehensive knowledge of discrimination law, you can have peace of mind knowing that you are in very capable hands with Damian. So, get in touch today for a free, confidential and no-obligation discussion.

The Future Of Whistleblowing Claims

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In April 2022, MP Mary Robinson introduced a new Whistleblowing Bill to parliament. This new Bill proposes to repeal the UK’s existing Public Interest Disclosure Act 1998 (PIDA) and instead, establish an independent Office of the Whistleblower to protect whistleblowers and ensure their safety. This independent body would set, monitor and enforce standards for the management of whistleblowing cases. It would also provide support and advisory services to potential whistleblowers, as well as create offences relating to the treatment of whistleblowers.

Whilst the PIDA has been protecting individuals who make certain disclosures of information in the public interest for many years now, many agree that the Government needs to review and update the existing UK whistleblowing law. In fact, UK whistleblowing charity; Protect, has launched a new campaign this year. This campaign calls on civil society to help reform the PIDA and fix the current UK whistleblowing law.

If you are considering blowing the whistle and you are interested in learning more about whistleblowing legislation, below we have touched upon what protection the current law provides and what changes charities like Protect are keen to implement.

Existing whistleblowing legislation

The PIDA protects whistleblowers from negative and unfair treatment or dismissal for voicing their concerns and reporting certain types of wrongdoing. Under this piece of legislation, employees and ‘workers’ are protected. This legislation made substantial amendments to the Employment Rights Act 1996 (ERA) to better ensure the protection of workers following several high profile whistleblowing cases. The PIDA provides legal remedy to whistleblowers and most notably, it makes it automatically unfair for employers to dismiss an employee because they have disclosed information in the public interest.

In some circumstances, whistleblowers can bring a claim to the Employment Tribunal and they can be awarded compensation for the detrimental treatment they experienced after blowing the whistle. Similarly, they can also receive compensation if they were unfairly dismissed for being a whistleblower. The amount of compensation a whistleblowing claim generates will be dependent on a number of factors, including the level of sufferance experienced. However, it is important to note that there is no fixed amount to any whistleblowing claim and there is not a financial cap restricting the amount an Employment Tribunal can award.

You can find a definition of the term ‘worker’ under Section 43K of the Employment Rights Act 1996 (ERA) and this is a much wider category than ‘employee’. Unlike other employment law claims, there is no service period required to make a whistleblowing claim either and you will be protected from the moment you begin working for an employer. There are time limits for whistleblowing claims though and all claims need to be submitted to an Employment Tribunal within three months of the date that the subject of the complaint occurred.

What changes do people want to make to whistleblowing legislation?

One of the main reasons why whistleblowing charities, Members of Parliament and employment law specialists alike want to update the UK whistleblowing law is because it does not cover everyone. For example, the legislation does not protect the interest of self-employed workers. So, if they found themselves in a situation where they felt morally obligated to blow the whistle and they experienced detrimental treatment for doing so, they would not be protected. Unfortunately, volunteers and misidentified whistleblowers are not protected either, and there is a lot of legal grey area involved in some circumstances. For this reason, speaking to an employment law specialist is key if you do not fall under the definition of ‘worker’ within the ERA.

Another concern that employment lawyers have about the current whistleblowing legislation is that many employers often attempt to quash a claim by stating that it was not made in ‘good faith’. In order for disclosure to be considered protected disclosure in the eyes of the law and benefit from whistleblowing protection, the disclosure must be made in good faith. This means, there was not an ulterior motive, such as a grudge against the employer. Whilst the Enterprise and Regulatory Reform Act 2013 ensures that a claim will no longer fail if an Employment Tribunal finds that the disclosure has not been made in good faith, the compensation awarded can be reduced by up to 25%. This means that all whistleblowers have to consider how their claim will be viewed before they begin blowing the whistle and this can sometimes prevent them from disclosing information that is actually in the public interest.

The future of whistleblowing

Whilst there is no guarantee that changes will be made to the current whistleblowing law, it is likely that people will continue to campaign for the legislation to be reformed. Many are in agreement that anyone who blows the whistle needs protection and it is crucial that people do not hesitate to disclose information about wrongdoing in the workplace. Should people be apprehensive about the consequences of blowing the whistle there is a risk that things such as; criminal offences, miscarriages of justice, covering up wrongdoing and health and safety dangers will be overlooked. Employees need to feel confident in the fact that they will be protected if they make the decision to be a whistleblower.

Speaking to a whistleblowing solicitor in London

Should you have any questions about whistleblowing legislation and you would like to speak to an experienced whistleblowing solicitor in London, please do not hesitate to contact Damian McCarthy. Whether you just need specialist legal advice or you are looking for representation, you can guarantee that you will be in very capable hands with Damian. Not only does Damian have over two decades of experience working as an employment law advocate on complex cases, but he has even acted as a whistleblower himself and exposed corruption at the highest levels of the legal profession.

Over the years, Damian has worked on high profile employment law cases and his clients include companies, local authorities, trade unions and individual claimants. Damian has a great rapport with his clients and his main concern is always his client’s best interests. To discuss your whistleblowing employment law issue with someone who has the same knowledge and experience as a whistleblowing solicitor in London, feel free to get in touch with Damian for a free, confidential and no-obligation discussion today.

Do Menopausal Symptoms Amount To A Disability?

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Within the Equality Act 2010 (EqA), there is a list of ‘protected characteristics’ and anyone who is being treated unfairly because of one of these characteristics may be able to bring a claim to the Employment Tribunal. Under Section 4 of the EqA the list of protected characteristics is as follows;

age;
disability;
gender reassignment;
marriage and civil partnership;
pregnancy and maternity;
race;
religion or belief;
sex;
sexual orientation.

The EqA also goes into further detail about these protected characteristics, providing additional information about who is protected. Under Section 6, disability is defined as;

(1) A person (P) has a disability if—

(a) P has a physical or mental impairment, and
(b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.

However, there is still some confusion surrounding what is actually classed as a disability and, therefore, who is protected by the EqA in this regard. In the case of Ms M Rooney v Leicester City Council, the Employment Tribunal was responsible for determining whether menopausal symptoms could be a disability in the eyes of the law. Initially, the Employment Tribunal found that the claimant’s alleged menopausal symptoms did not amount to a disability for the purposes of the Equality Act 2010 and the claim was dismissed.

The claimant decided to appeal this decision and was then granted permission for the appeal against the finding that she was not a disabled person. Upon re-visiting the case, the Employment Appeal Tribunal (EAT) found that the Tribunal did not direct itself as to the statutory definition of “long term” under Paragraph 2 of Schedule 1 of the EqA;

2 Long-term effects

(1) The effect of an impairment is long-term if—
(a) it has lasted for at least 12 months,
(b) it is likely to last for at least 12 months, or
(c) it is likely to last for the rest of the life of the person affected.

The EAT also found that there was no explanation as to how the Tribunal concluded that the claimant’s evidence, which it did not reject, did not demonstrate an effect on day-to-day activities that was more than minor or trivial. It was ultimately concluded that the Tribunal fell into the error of weighing what the claimant could do against what she could not do and the Tribunal erred in law in holding that the claimant was not a disabled person at the relevant time.

The EAT stated that the determination of whether the claimant was a disabled person will require careful factual analysis and the issue must be remitted to the Employment Tribunal.

So, are menopausal symptoms a disability?

Whilst this case has not yet been remitted and there is no final ruling as to whether the claimant has won her case of disability discrimination, the fact that the appeal against the dismissal of the disability discrimination claim was allowed is pivotal. This case has caused many employment law specialists to rethink the definition of ‘disability’ under the EqA and it is likley that even though the menopause is not mentioned in this piece of legislation, employees suffering from menopausal symptoms may be protected from discrimination under the EqA in the future.

Lots of media outlets have been focusing on menopause recently and looking into the effects that menopausal symptoms have on women’s daily lives. With an increased focus on menopause these days, it is likley that more women who have experienced adverse treatment in the workplace because of their menopausal symptoms will consider bringing a discrimination claim to the Employment Tribunal.

What can employees learn from this case?

Although it has not yet been decided whether or not menopausal symptoms will actually amount to a disability in the case above, it should not be assumed that menopausal symptoms will never be considered a disability in some circumstances under key UK employment law legislation. Ultimately, should the menopausal symptoms experienced have a significant impact on an employee’s daily life and, in turn, affect their ability to carry out their work responsibilities as they usually would, this could potentially amount to a disability.

All employees need to be aware that their employers should make reasonable adjustments when required to accommodate anyone with a disability in the workplace. Moving forward, it is recommended that employers consider women’s individual circumstances relating to their menopausal symptoms and they most certainly should not be treating female employees less favourably because they are going through menopause.

Under Chapter 2, Section 13 of the Equality Act 2010, direct discrimination is described as;

A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

Being aware of the protection provided to anyone who is being discriminated against in the workplace is incredibly advantageous and it can help employees to identify if the conduct they are experiencing is unlawful. If you are being treated less favourably due to a protected characteristic, whether this is your age, gender or disability, it is beneficial to seek employment law advice. An employment law solicitor, lawyer or advocate will be able to provide you with additional information about the EqA and help you to establish whether you are being discriminated against in the workplace.

Should you wish to make a discrimination claim against your employer, you do need to act quickly as there are time limits for this type of claim. Most discrimination claims need to be filed within three months less one day from the date that the discrimination occurred. Should the discrimination be an ongoing process, this time period runs from the most recent discriminatory behaviour. An employment law specialist will be able to assist you with your claim and help you to ensure you have the best chance of success.

Getting employment law advice in London

When searching for an employment lawyer in London who can assist you with a discrimination claim, do not hesitate to contact Damian McCarthy. As a Senior Advocate with over two decades of experience handling complex employment law cases, you can trust that Damian will be able to provide you with the sound legal advice that you need, regardless of what your case entails. Damian has a reputation for fighting “tooth and nail” for his clients and he will work closely with you to achieve the best possible results.

As an employment law specialist, Damian has represented clients at the highest levels and he
has turned very difficult cases into winning ones. He is regularly hired by the biggest law firms in
the UK to represent clients and he specialises in discrimination claims and whistleblowing claims. You can always turn to Damian in confidence knowing he values your interests and he will be totally committed to your case. Simply get in touch with Damian today for a free, confidential and no-obligation discussion about your employment law issue.

It is worth noting that whilst Damian will represent people if he can, he is unable to represent
everyone who contacts him. If he is unable to represent you himself, he can still help you to
obtain legal funding and he will also recommend the most suitable employment lawyer for your
individual needs. Damian is happy to help in any way he can, completely free of charge.

An In-Depth Guide To Race Harassment At Work

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Last year, Azeem Rafiq accused Yorkshire County Cricket Club (YCCC) of racism, saying

When experiencing race harassment at work, employees may be able to bring a claim to the Employment Tribunal. Within The Equality Act 2010 (EqA), race is a protected characteristic and this key piece of legislation provides protection to employees who are experiencing harassment on grounds of race. Other protected characteristics include; 

  • Age
  • Disability
  • Gender reassignment
  • Marriage and civil partnership
  • Pregnancy and maternity
  • Religion or belief
  • Sex
  • Sexual orientation

What does the EqA say?

To gain a better understanding of how harassment is made unlawful in the workplace, it is beneficial to read the piece of legislation that protects against harassment. Section 26 of The Equality Act 2010 is as follows; 

(1)     A person (A) harasses another (B) if—

(a)     A engages in unwanted conduct related to a relevant protected

characteristic, and

(b)     the conduct has the purpose or effect of—

(i)    violating B’s dignity, or

(ii)    creating an intimidating, hostile, degrading, humiliating or

offensive environment for B.

(2)     A also harasses B if—

(a)     A engages in unwanted conduct of a sexual nature, and

(b)     the conduct has the purpose or effect referred to in subsection (1)(b).

(3)     A also harasses B if—

(a)     A or another person engages in unwanted conduct of a sexual nature or

that is related to gender reassignment or sex,

(b)     the conduct has the purpose or effect referred to in subsection (1)(b),

and

(c)     because of B’s rejection of or submission to the conduct, A treats B less

favourably than A would treat B if B had not rejected or submitted to the

conduct.

(4)     In deciding whether conduct has the effect referred to in subsection (1)(b), each of the

following must be taken into account—

(a)     the perception of B;

(b)     the other circumstances of the case;

(c)     whether it is reasonable for the conduct to have that effect.

Drawing the line between lawful and unlawful conduct

In the EqA, ‘unwanted conduct’ is frequently mentioned and it can be incredibly difficult to determine whether the conduct experienced is unwanted and therefore, unlawful. Race harassment claims often are not clear-cut as the same incident can be viewed very differently by the parties involved. For example, what one person considers to be a playful joke can be demeaning race harassment to another. 

Sometimes, “banter” can be used as a defence in race harassment cases too and an employer may claim that any racist comments or behaviours were just “banter”. Whilst in some circumstances, conduct may actually be banter, this is not always the case. Even in situations where it may look like both parties are voluntarily taking part in the conduct which could be racially offensive and not taking any offence, one party may be a victim of harassment. 

Unfortunately, both parties are rarely in an equal position and the person from an ethnic minority background, for example, will not actually want to participate in the “banter”. They may just be laughing off the unwanted conduct in an attempt to fit in and prevent the situation from becoming worse for them. Even if they are laughing, they can still be on the receiving end of serious harassment due to their race. 

A characteristic of harassment is that it undermines the victim’s dignity at work or that it creates an intimidating, hostile, degrading, humiliating or offensive environment for them, and this will be taken into consideration when determining whether the conduct experienced was actually unlawful. When making a race harassment claim, the question is not what the Employment Tribunal would find offensive, it is what the victim thinks is unacceptable and offensive. 

It is important to note that race harassment at work will be unlawful if the conduct has either the purpose or effect of violating dignity or creating an intimidating, hostile, degrading, humiliating or

offensive environment. Therefore, the motive or intention can be completely irrelevant, even if it was entirely innocent, when a claim relies on the effect of the unwanted conduct. At this time, an Employment Tribunal will take into account section 26(4) of the EqA. 

Taking responsibility for race harassment at work

In race harassment cases, sometimes an employer may find themselves responsible. Unless a successful ‘reasonably practicable’ defence is brought to the Employment Tribunal, even though an employer did not necessarily approve of the unwanted conduct they may be held responsible for the comments and actions of their employees. An employer not knowing about the conduct in question will not prevent them from being held responsible either. 

The compensation provided to race harassment victims 

Commonly, the rhetoric of harassment involves jokes or unsympathetic comments about the protected characteristic of an employee, such as race. Comments of this kind are likely to be seen as offensive by the person on the receiving end of them. However, race harassment can also take on less obvious forms of treatment. For example, when an employee is deliberately left out of a certain activity, making them feel humiliated, intimidated and isolated. 

When bringing a race harassment claim to an Employment Tribunal, there are a number of different factors that will be taken into consideration when a Judge makes their ruling for compensation. In addition to the type of unwanted conduct that took place, the effect this conduct had on the victim will play a role when compensation is being awarded. 

Generally speaking, you can claim compensation for ‘injury to feelings’ in almost any harassment claim. Whilst there are some general guidelines in regards to how much you can receive for emotional distress, commonly known as the Vento Bands, to learn more in this regard it is beneficial to speak to a specialist employment lawyer. They will be able to provide you with more detailed information on how much compensation you may receive based on your individual circumstances. 

It is important to note that in addition to monetary compensation for injury to feelings, the Employment Tribunal may also rule that an employer needs to do things such as;

  • Send a written apology to the claimant
  • Arrange discrimination and diversity awareness training for employees
  • Write to all staff stating there is zero tolerance to racism in the workplace and racist jokes or banter will lead to disciplinary action being taken, including dismissal
  • Provide training to HR Officers on how to deal with discrimination complaints
  • Implement a grievance policy that is compliant with the ACAS Code of Practice
  • Implement an equal opportunities policy

For example, in the case of Ms Anne Giwa-Amu v Department for Work and Pensions (Cardiff), the Claimant was awarded £42,809.32 compensation for injury to feelings, £31,102.57 in respect of past losses and £169,723.95 in respect of future losses. The tribunal also made several recommendations to obviate or reduce the adverse effects of the discrimination on the Claimant, including; 

“ 81.4.     On or before 25th May 2020, Peter Schofield (Permanent Secretary) and Debbie

Alder (Director General of HR) or equivalent, should read the Liability and Remedy

Judgments in this case and arrange a meeting with the Claimant (if she wishes to attend

such a meeting) to:

81.4.1.     identify the failings in policies and procedures;

81.4.2.     discuss the lessons that can be learnt from the Claimant’s experience as recorded in these Judgments; and

81.4.3.     provide the Claimant with a written apology having reflected upon the judgments.

81.5.     On or before 25th May 2020, the Respondent should approach the Equality and

Human Rights Commission and seek their assistance in reviewing the Respondent’s Equality Act 2010 and diversity awareness training, with a view to implementing effective training throughout the Respondent’s organisation on or before 25th May 2021.

          “

Ultimately, the ruling made by an Employment Judge can differ quite considerably from one race harassment case to another depending on multiple factors and circumstances. It can be difficult to predict what the outcome of a case will be, but an employment law specialist will be able to provide you with some expert guidance in this regard. 

Speaking to a specialist about race harassment claims 
Should you wish to speak to an employment law specialist about race harassment in more detail, please do not hesitate to contact Damian McCarthy today. Damian has advised and acted for a number of employees who have suffered race discrimination, including; direct discrimination, indirect discrimination, harassment and victimisation. Regardless of what unwanted conduct you have experienced in relation to a protected characteristic, Damian will do all he can to assist you and help you to get the justice you deserve. Damian has represented clients at the highest levels and he is no stranger to handling complex employment law cases. So, with his extensive experience in employment law, you can rest assured that you will be in the best hands when you enlist his assistance with a race harassment claim.

therae was “institutional racism” at the club and a formal inquiry was launched.

Azeem Rafiq made a staggering 43 claims in total and subsequently, 7 of these claims were upheld. These claims were inclusive of players repeatedly using racially offensive terms towards him and the investigation concluded that he was the victim of racial harassment.

However, whilst the investigation revealed that at least one player admitted to using racially offensive terms, this player is insistent that he had no idea he was causing offence with his comments. The investigation has brought to light that many use racially offensive terms as ‘friendly banter’ without necessarily realising that these comments are creating an intimidating, hostile, degrading, humiliating or offensive environment.

It goes without saying that racial harassment has no place in sport, yet it is clear that many do not understand the consequences of ‘banter’ and what their unwanted comments and behaviour may actually amount to in the eyes of the law. Ultimately, the comments made towards Azeem Rafiq amounted to harassment under The Equality Act 2010 and they crossed the fine line between friendly ‘banter’ and unlawful racial harassment.

Establishing when racial discrimination has occurred

It is so important that employees are aware of what constitutes racial harassment in the workplace. It can often be hard to determine what qualifies as harassment because what one person believes to be harmless banter can be considered offensive by another and it is not uncommon for racially offensive terms or racist behaviour to be overlooked as they are portrayed as ‘jokes’ or ‘banter’. Continually overlooking this conduct can have a detrimental effect on employees though and in the case of Azeem Rafiq, the harassment he experienced left him close to taking his own life.

The Equality Act 2010 (EqA) is the key piece of UK legislation that covers issues involving discrimination, harassment and bullying at work. This piece of legislation lists ‘race’ as a protected characteristic and therefore, it provides protection to anyone who has suffered unfavourable treatment due to their race.

For many, the racial harassment they experience usually involves unsympathetic comments, jokes and gestures bearing negative racial connotations. This type of behaviour is understandably seen as offensive to those who are on the receiving end of it and is generally clearly recognised as harassment. However, there are also lots of less easy to identify scenarios that incorporate racially inappropriate behaviour and racially offensive terms in more subtle forms. It is these scenarios that many do not realise can still be constituted as harassment under employment law.

All employees need to know that when harassment falls into one of The EqA categories, a claim can be taken to an Employment Tribunal. So, if you are experiencing unwanted comments and/or behaviour due to your race, you should reach out to an employment law specialist for some tailored legal advice. Being treated in a manner that causes you emotional or physical suffering is unacceptable and you should not hesitate to take legal action against your employer, if applicable, to get the justice you deserve.

Speaking to an employment law specialist in London

If you are struggling to determine whether you have been experiencing racial harassment and would like to speak to an employment law specialist in London, please get in touch with Damian McCarthy today. Damian will gladly take the time to discuss The EqA with you in more detail and answer any questions that you may have in relation to acts of harassment. Damian has more than 20 years of experience handling complex employment law cases and you can trust that he is the best employment law specialist in London to turn to.

Should you decide to take a claim to the Employment Tribunal, this is something else that Damian can assist you with and he is known for fighting “tooth and nail” for his clients. Damian can work closely with you to develop a winning strategy that will get you results and he will be totally committed to your case. Unlike other employment law specialists in London, Damian will never settle your case because it is his interest to do so either and he is passionate about ensuring your interests are protected at all times.

The Fine Line Between ‘Banter’ And Racial Harassment

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Last year, Azeem Rafiq accused Yorkshire County Cricket Club (YCCC) of racism, saying there was “institutional racism” at the club and a formal inquiry was launched.

Azeem Rafiq made a staggering 43 claims in total and subsequently, 7 of these claims were upheld. These claims were inclusive of players repeatedly using racially offensive terms towards him and the investigation concluded that he was the victim of racial harassment.

However, whilst the investigation revealed that at least one player admitted to using racially offensive terms, this player is insistent that he had no idea he was causing offence with his comments. The investigation has brought to light that many use racially offensive terms as ‘friendly banter’ without necessarily realising that these comments are creating an intimidating, hostile, degrading, humiliating or offensive environment.

It goes without saying that racial harassment has no place in sport, yet it is clear that many do not understand the consequences of ‘banter’ and what their unwanted comments and behaviour may actually amount to in the eyes of the law. Ultimately, the comments made towards Azeem Rafiq amounted to harassment under The Equality Act 2010 and they crossed the fine line between friendly ‘banter’ and unlawful racial harassment.

Establishing when racial discrimination has occurred

It is so important that employees are aware of what constitutes racial harassment in the workplace. It can often be hard to determine what qualifies as harassment because what one person believes to be harmless banter can be considered offensive by another and it is not uncommon for racially offensive terms or racist behaviour to be overlooked as they are portrayed as ‘jokes’ or ‘banter’. Continually overlooking this conduct can have a detrimental effect on employees though and in the case of Azeem Rafiq, the harassment he experienced left him close to taking his own life.

The Equality Act 2010 (EqA) is the key piece of UK legislation that covers issues involving discrimination, harassment and bullying at work. This piece of legislation lists ‘race’ as a protected characteristic and therefore, it provides protection to anyone who has suffered unfavourable treatment due to their race.

For many, the racial harassment they experience usually involves unsympathetic comments, jokes and gestures bearing negative racial connotations. This type of behaviour is understandably seen as offensive to those who are on the receiving end of it and is generally clearly recognised as harassment. However, there are also lots of less easy to identify scenarios that incorporate racially inappropriate behaviour and racially offensive terms in more subtle forms. It is these scenarios that many do not realise can still be constituted as harassment under employment law.

All employees need to know that when harassment falls into one of The EqA categories, a claim can be taken to an Employment Tribunal. So, if you are experiencing unwanted comments and/or behaviour due to your race, you should reach out to an employment law specialist for some tailored legal advice. Being treated in a manner that causes you emotional or physical suffering is unacceptable and you should not hesitate to take legal action against your employer, if applicable, to get the justice you deserve.

Speaking to an employment law specialist in London

If you are struggling to determine whether you have been experiencing racial harassment and would like to speak to an employment law specialist in London, please get in touch with Damian McCarthy today. Damian will gladly take the time to discuss The EqA with you in more detail and answer any questions that you may have in relation to acts of harassment. Damian has more than 20 years of experience handling complex employment law cases and you can trust that he is the best employment law specialist in London to turn to.

Should you decide to take a claim to the Employment Tribunal, this is something else that Damian can assist you with and he is known for fighting “tooth and nail” for his clients. Damian can work closely with you to develop a winning strategy that will get you results and he will be totally committed to your case. Unlike other employment law specialists in London, Damian will never settle your case because it is his interest to do so either and he is passionate about ensuring your interests are protected at all times.

Victim Of Sexual And Religious Harassment Wins Claim At Employment Tribunal

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Aakifah Ali took a claim of sexual harassment and religious harassment to the Employment Tribunal after resigning from her role at fast-food restaurant; Pepe’s Piri Piri in 2018. 

Whilst she was working for the restaurant, Miss Ali was made to feel uncomfortable by her assistant’s manager, Zoltan Szoke, whose behaviour had started to become inappropriate. During their shifts together, Mr Szoke would repeatedly touch her. On one occasion in June 2018, he grabbed her, held her arms in a tight grip and said he would close up early and she could take her clothes off and do a strip show for him. 

The following month, the father of the restaurant owner; Arif Hussein made comments about her religion. Mohammed Hussein equated Wahabism to extremism and terrorism. Miss Ali spoke to Arif Hussein about his father’s comments, saying she did not feel safe in his presence as he was always making rude remarks, but nothing came of this. 

Miss Ali resigned from her role in August 2018 after an error in her wages and she made it known in her resignation that she felt as though she had been targeted for many months and was the victim of workplace harassment and bullying. She referred to the fast-food restaurant as a toxic environment. 

The Employment Tribunal Judge ruled that the behaviour of Mr Szoke was sexual harassment and that Miss Ali was sufficiently discomfited by what had happened. The judge also ruled that the comments made by Mohammed Hussein were religious harassment. Miss Ali was then awarded £23,408.20.

What do employees need to know about work harassment and bullying?

Like Miss Ali in the case above, any employee that experiences harassment at work will be protected by The Equality Act 2010. This act makes it unlawful to harass or bully someone in the workplace due to a number of different protected characteristics, including; gender, sexual orientation, religion and belief. Within The EA, harassment is defined as behaviour or comments that have the purpose or effect of violating someone’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

Unfortunately, harassment and bullying in the workplace is often harder to determine as behaviour and comments can be interpreted differently between people and it can be difficult to establish what qualifies as harassment. That being said, it is important to note that what one person may believe to be harmless banter, can still be harassment and as an employee, you should not have to put up with any behaviour or comments that make you feel victimised. Regardless of whether the person conducting the harassment realises that they are doing so, employees are still entitled to take action.

Should you be experiencing unwanted conduct, whether this is behaviour of a sexual nature or comments about your religion, for example, the best thing to do is reach out to an employment law specialist. They will be able to advise you further and provide you with tailored guidance as to what you should do in your individual circumstances. If the workplace harassment and bullying you are experiencing falls into one of The EA categories, they can assist you should you wish to take a claim to the Employment Tribunal too, as Miss Ali did. 

It is important to be aware that if you would like to make a claim for harassment or bullying, you must do so within three months less one day from the date that the behaviour or comments occurred. If the unwanted conduct has been ongoing, like in the case above, the time period will run from the most recent date of the behaviour or comments. 

Speaking to an employment law specialist about workplace harassment 

If you are being bullied or harassed at work and you are looking for an employment law specialist to turn to for assistance, please do not hesitate to contact Damian McCarthy. Damian is regularly instructed on high profile and complex discrimination claims and harassment claims, and he will gladly provide you with the legal advice you need. With two decades of experience behind him, you can trust that you will be in the best hands when you turn to Damian. 

When taking a claim to the Employment Tribunal, Damian will represent you fearlessly too and he will develop a winning strategy that will get you results. You can be assured that, unlike other employment lawyers, Damian will not settle your case because it is his interest to do so and his main concern is what is in your best interests. So, get in touch to have a free, confidential and no-obligation discussion with Damian today.

The Consequences Of Sexist Language Being Used In The Workplace

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Whilst they are at work, both employees and employers alike need to be conscious of what they are saying. It is a huge misconception that discrimination in the workplace only occurs when a person is treated unfairly, but this definitely is not the case, especially when it comes to sex discrimination, and the words you say can have more of an effect than you may initially realise. 

In case you are not aware, The Equality Act 2010 is a key piece of legislation that covers issues involving discrimination at work and this legislation actually recognises several different forms of discrimination, including; direct discrimination, indirect discrimination and also harassment and victimisation. So, in addition to someone being treated in a way that is clearly less favourable than others due to their gender, they may also be the victim of sex discrimination if they have been spoken to in a way that causes them emotional suffering due to their gender. 

Generally speaking, it can sometimes be quite difficult to determine if the language being used in the workplace is actually unlawful as those making the unsympathetic and unwanted sexist comments might not realise the harm that they are causing. However, they can sometimes still be taken to the Employment Tribunal and just because someone thinks what they are saying is ‘banter’ or a joke does not mean that it is not discriminatory. 

If you have always shrugged off the comments made by your colleagues or managers that have caused you to feel uncomfortable, you may have a discrimination case on your hands and it is important to be aware that you are protected under The Equality Act 2010 in this regard. To give you an example of a sex discrimination claim that solely involves verbal discrimination, below we have looked into a recent case that was taken to the Employment Tribunal. 

What happened in this case?

A female Barclays investment banker has won the sex discrimination claim against her manager, Mr Kinghorn, that she took to the Employment Tribunal. 

Back in February 2018, Ms Lacatus’s manager repeatedly used the word ‘bird’ to refer to a female colleague. Even after Ms Lacatus told him that he should not be using that language and that he should stop, Mr Kinghorn continued to use the word, making her feel uncomfortable. Ms Lacatus said that on one occasion, Mr Kinghorn even told her not to report him to HR for the language he was using when referring to females. 

At the Employment Tribunal, Mr Kinghorn tried to defend calling female colleagues ‘birds’ by saying it was intended to be light-hearted and humorous. However, the Judge ruled in favour of Ms Lacatus and said that the language used was inappropriate and referring to females in the workplace as ‘birds’ is sexist language.

The judge also said that it was foolish to assume that anybody would find this language amusing and that the word ‘bird’ inadvertently caused offence in the workplace. There will be a hearing to decide compensation for Ms Lacatus at a later date. 

Getting some employment law advice in London

All in all, it is fair to say that if comments are being made at your expense in the workplace or words and terms are being used that make you feel uncomfortable, you do not simply have to put up with this. The case above is proof that you can win a sex discrimination claim that is based on unwanted verbal conduct and physical conduct is not required to be taken seriously by the Employment Tribunal. So, if you have experienced sexist language in the workplace, you should not hesitate to get some tailored legal advice. 

Damian McCarty will be able to assist you further in this regard and there is no one better to turn to for employment law advice in London. With many years of experience behind him, Damian will be able to answer any questions that you may have regarding your experience of discrimination in the workplace. Damian specialises in high profile employment law cases and he has worked on a number of discrimination claims in the past, some of which have been very complex, so you can trust that he will have the capabilities to be able to help you.