More equal than others

Did George Orwell get it right when the pig in his 1945 novel, Animal Farm, declared: “All animals are equal but some are more equal than others”? The courts and tribunals remain very much in business resolving disputes about currently prohibited forms of discrimination, including race or sex discrimination, and will no doubt be even busier when age comes on the agenda. So the question therefore remains: are those who are more equal than others still disregarding the rights of those protected by law?

The principles of vicarious liability apply to all discrimination issues that arise in the workplace. If an employee carries out an unlawful act of discrimination, the employer will be legally liable if the act was carried out ‘in the course of employment’, whether or not it was done with the employer’s knowledge or approval. The court will decide on the facts of whether the employer is deemed to have knowledge of what goes on in its workplace.

The principle is set out in the 1968 case of Stokes v GKN, where it was held that the employer knew or ought to have known that its employees were at risk of contracting scrotal cancer even though the company doctor had withheld relevant information. The employer should have had more than one source of ascertaining risk factors and should have known what was going on both in its own workplace and in the real world outside: it was not absolved by a lack of current scientific and medical knowledge.

No matter how proactive the employer is in defining policies to stamp out discrimination and to make it a disciplinary offence, unless staff are adequately trained, they may not understand how easy it is to cause offence or how much easier it is not to.

No matter whether disciplinary offences are described in the employment handbook and no matter how serious the sanction for breach, all employees require information and training with regular updates, particularly in relation to disability discrimination, since some forms of disability are not necessarily overt. Further, unless employees are trained to cope with the needs of disabled colleagues, they may be aggrieved by the perception that reasonable adjustments amount to some sort of advantage.

A hypothetical case
In a hypothetical scenario, co-workers of a person with learning difficulties perceive them as lazy because they are slow to adapt to and carry out new tasks. The line manager does not educate the team to make allowances for the slow rate of working. Co-workers tease and insult them.

They becomes enraged and lash out violently, frightening their tormentors. The employer sees this as gross misconduct. They lose their job.

 The employment tribunal sees that no reasonable adjustment has been made to accommodate the employee’s needs to have more time to do their work and for their co-workers to respect those needs. The disabled employee is compensated. Expensive lessons are learned all round.

The other scenario is a proactive approach. Members of staff are trained to work with disabled colleagues. The disability is then identified either by the employee’s declaration or through standard risk assessments focusing on the individual as well as the job criteria. Having identified that the employee is a slow learner, discussions are held with the members of the team on working with them to understand and cope with their difficulties. Problems are prevented or resolved. The key factor is education.

The disability scenario illustrates the contrasts between ignorance and information in a relatively new area of discrimination law, highlighting the need for effective grievance procedures to be in place to enable employees to raise concerns.

As we went to press, a sex discrimination case is being reported with banner headlines carrying details of allegations of sexual harassment made by a secretary, Faria Alam, against managers in the Football Association.

The difficulty she has had in presenting her case is that she apparently raised no complaint at the time the alleged harassment took place. Part of any successful equal opportunities training programme is making employees’ rights known to them and giving them a secure system for confidential reporting of matters of concern. Complaints should be followed through with sensitivity and tact.

Taking proactive steps
The duty on the employer is not particularly onerous: to take reasonably practicable steps to prevent employees from committing thoughtless or deliberate acts of what may be called discriminatory vandalism, which can affect the health and well-being of the entire workforce.

Every now and then, a committed bigot or dedicated office pest will remain immune from training. Such persons can be held personally liable and therefore be ordered to pay compensation to the victim of their malice. The expense of training people how to behave will greatly reduce the chances of discrimination claims being brought or, if unstoppable, succeeding.

n Linda Goldman is a barrister at 7 New Square, Lincoln’s Inn, London. Joan Lewis is an independent employment law consultant, licensed by the General Council of the Bar under BarDirect.

If you have any enquiries about this article, you can contact Joan Lewis at joanlewis25a@aol.com, or, alternatively, by phone on 020 8943 0393.

Casebook

Brumfitt v MoD and another [2005] IRLR 4, EAT
Offensive language generally used cannot amount to discrimination.

Brumfitt’s supervisor used offensive and obscene language directed at male and female members of the armed forces on a training course.

Brumfitt, a serving corporal, was upset by the language but did not suffer a detriment, as it could not be said that a female employee would not have suffered the treatment complained of but for her sex. All personnel, regardless of gender, were treated in the same way.

Waters v Commissioner of Police [1997] IRLR 589, EAT
Waters, a female police officer, alleged that a male police officer raped and seriously sexually assaulted her in her room in police residential quarters.

An important factor in the case was that the male officer did not reside in the same premises as Waters.

The incident was held not to have occurred in the course of his employment because he was a consensual visitor to Waters’ room.

Further, the timing was outside work hours. Finally, it could have taken place even if the alleged assailant had not been a police officer.

Thus, the employer was not liable.

Chief Constable of the Lincolnshire Police Force v Stubbs [1999] IRLR 81, EAT
Stubbs, a female police officer, alleged that a male colleague had subjected her to two incidents of sexual harassment at work.

The first involved him touching her hair and arranging her shirt-collar in the presence of other officers, who had gone as a group to the pub. The impression given to others was one of intimacy between them.

The second was an offensive and sexist comment at a police awards ceremony. The EAT upheld the original finding that the employer was liable for the male officer’s acts.

Although the social events occurred outside the police station, they were in extensions of the workplace since they were organised by management.

The principle is that the employer is liable if the employee is engaged in a task that, it is expected, will be performed as a part of the job. The employer could avoid liability for matters occurring at a private place outside working hours.

The EAT said: “When there is a social gathering of work colleagues, it is entirely appropriate for the tribunal to consider whether or not the circumstances show that what was occurring was an extension of their employment. Each case will depend upon its own facts … Whether a person is or is not on duty, and whether or not the conduct occurred on the employer’s premises are but two of the factors which will need to be considered.”

Moonsar v Feveways Express Transport Ltd [2005] IRLR 9, EAT
Moonsar, of Indo-Caribbean origin, was a data entry clerk. On three occasions, male colleagues downloaded pornographic images onto a computer screen in her sight.

Although she was offended, she made no complaint, as she was afraid that doing so would put her job at risk.

After her dismissal on the alleged grounds of redundancy, she complained of sex and race discrimination.

The tribunal was not satisfied that she was shown the images and said that her explanation as to why she did not complain did not have the ring of truth: the conduct could not amount to discrimination by reason of sexual harassment.

However, the race discrimination claim was upheld as she was selected for redundancy ahead of a white worker with a shorter employment history.

The EAT said that the employment tribunal had erred in its decision on sex discrimination.

“Viewed objectively, [downloading pornography] clearly had the potential effect of causing an affront to a female employee working in a close environment, and as such would be regarded as degrading or offensive to an employee as a woman.

It was clearly potentially less favourable treatment and a detriment clearly followed from the nature of the behaviour.” The case was remitted to the tribunal to make an award for sex discrimination.

Alabaster v Woolwich plc & Secretary of State for Social Security [2004] IRLR 486, ECJ
At the start of Alabaster’s pregnancy, she earned 11,619 a year. The baby was due in February 1996. Her statutory maternity pay (SMP) related to her normal weekly earnings during the eight-week period immediately preceding the 14th week before the expected week of childbirth, namely the eight weeks prior to 31 October 1995.

Her pay increased to 12,801 a year from 1 December 1995 but her maternity pay was calculated by reference to the relevant period at the old salary. She claimed that this was contrary to the Equal Pay Act 1970 and Article 141 (formerly Article 119) of the EC Treaty.

Her claim failed at the employment tribunal and the Employment Appeals Tribunal on the basis that it could not be brought under the Equal Pay Act because there was no male comparator, nor under European legislation, as she had a remedy in domestic law in that she should have brought a claim on the basis of an unlawful deduction from wages.

The Court of Appeal referred the matter to the European Court of Justice, which held that a woman who receives a pay increase before the start of her maternity leave is entitled, in accordance with Article 141, to have the increase taken into consideration in the calculation of her SMP.

It is discriminatory for an employed woman not to be given the benefit of a pay rise that is awarded between the beginning of the reference period and the end of maternity leave. To deny such an increase would be discriminatory because, but for the pregnancy, she would have received the benefit of the pay rise.


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