Category Archives: Insight Article

Employment law for businesses is a complex and constantly changing area of law. Employers must frequently bear this in mind when interacting with employees and workers. For example, the laws governing employees’ rights come into play when a company starts to recruit and often survives the employment relationship’s termination.

For instance, an unsuccessful candidate for a role may have the scope to bring a claim against a prospective employer under the Equality Act 2010. Claims occur when the recruitment process conflicts with the rights afforded to individuals under the Equality Act and when an employer violates one of the protected characteristics.

Protected characteristics

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

Employment law provides a framework for regulating and potentially enforcing the employment relationship and is available to employers and employees. Unfortunately, keeping abreast of this area of law can be daunting.

Primary sources of employment law in the UK

1. law derived from case law (cases heard before the Courts and Tribunals);
2. UK statutes and European law; and
3. codes of practice also have influence, for example, the ACAS Code of Practice on Discipline and Grievance Procedures.

Businesses should not switch off once they onboard an employee. Instead, they must manage the working relationship. For example, they should consider discipline and performance management, employee data protection and dealing with grievances and sickness and incapacity.

Karen recommends that employers manage the duties they face by regularly reviewing employment contracts, workplace rules and policies and providing regular training for HR and team heads.

Efficient and proactive, RIAA Barker Gillette’s employment team offers pragmatic commercial employment advice underpinned by their extensive legal knowledge and expertise. Contact Karen Cole today.

Should you encourage staff to add pronouns to their email signatures? Do you understand all the different expressions of gender identity? It may not simply be a choice of he/him, she/her, they/them.

Private members’ club, Soho House, offered a choice of 41 pronouns to its members, ranging from the mainstream to the obscure, including eir, ners, pers, thon and xyr. The topic even has a special day: International Pronouns Day on the third Wednesday of October.

While the practice of adding pronouns to emails seems to have started in academic circles, it has now spread widely across the corporate world. Employees may actively choose to give their pronouns. But, staff are also being asked to cite their preference, and many report that this is not just on emails but also within meetings and online profiles, such as LinkedIn.

While enforcing a company-wide policy may be presented as a move toward greater openness and inclusivity. Some would argue that this can act to exclude those with different views and potentially breach equality legislation itself. For example, mandating declared pronouns or creating situations where it’s difficult to avoid their use could be coercive.

Cases

The guide developed by the campaign group Sex Matters on the use of gender pronouns in the work environment reflects the extent to which the topic has become contentious. Maya Forstater launched the group, having won a landmark appeal tribunal over gender self-identification. She had made a discrimination claim after being sacked for saying that trans women are male or ‘honorary female’. She argued that sex is immutable and should not be conflated with gender identity. On appeal, the judge ruled that her comments were protected as a ‘philosophical belief’ within the meaning of the Equality Act 2010. He said that the only types of beliefs excluded from protection were extreme ones “akin to Nazism or totalitarianism”.

The ruling said that Forstater’s “gender-critical beliefs, which were widely shared, and which did not seek to destroy the rights of trans persons, clearly did not fall into that category”.

This landmark case confirmed that the law protects both those holding a gender identity belief and those having a gender-critical belief.

But whether conduct arising from such belief may be discriminatory to trans people is a different question, relying on the facts of each case. Certainly, someone with gender critical beliefs cannot indiscriminately address trans persons in derogatory terms or ignore preferred forms of address, as this is likely to constitute harassment or discrimination.

Dr Mackereth faces this challenge. A declared Christian, Dr Mackereth is appealing a tribunal decision that found that he was not discriminated against on the grounds of religion or belief when his employer dismissed him for refusing to address transgender patients by their chosen pronoun.

Dr Mackereth relies on a theological argument and claims that most Christians share his belief. However, an essential difference between the Forstater and Mackereth cases is that the doctor argues that his beliefs entitled him to misgender transgender individuals. In contrast, Ms Forstater expressed her beliefs but used preferred pronouns.

Conclusion

These cases demonstrate just some of the difficulties employers face in looking to create a culture that is inclusive. They emphasise the importance of appropriate policies and keeping up to date with this fast-moving area of employment law.

For guidance and advice on pronouns in the workplace, contact employment lawyer Karen Cole today.

Note: This article is not legal advice; it provides information of general interest about current legal issues.

It was just banter

A ‘term of endearment’ suggests affection, but such expressions may result in individuals feeling harassed or discriminated against. That’s important to consider when you see how workplace banter is driving a surge in claims against employers. A recent analysis identified a 45% rise in such claims between 2020 and 2021.

The Equality Act 2010 protects people from discrimination, harassment and victimisation related to one of several protected characteristics. The protected characteristics are:

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

For banter to be unlawful, its purpose or effect must violate a person’s dignity or create an intimidating, hostile, degrading, humiliating or offensive environment.

Employers need to perform temperature checks on the underlying culture of their business to avoid problems arising.

Employees might think it’s just part of a jokey environment. But their comments may constitute bullying or harassment if they subject someone to discriminatory jokes regarding age, gender, sexual identity, race or nationality.

Cases

One 69-year-old plumber was known as ‘half-dead Dave’ by colleagues and won £25,000 in damages for age-related discrimination. A woman whose boss humiliated her in front of colleagues and customers by calling her a ‘dinosaur’ because she was menopausal received a similar award.

Frances Fricker, a woman in her 30s, won her sexual harassment claim after her boss referred to her as a “good girl”, even after she objected and harassed her to change her profile images on social media, saying she looked fat. As the tribunal judge said: “Some phrases, whilst not regarded as taboo, are generally regarded as inappropriate in the workplace. Referring to a woman in her late-30s with a school-age child as a girl is demeaning.”

The judge went on to say: “Language evolves over time. Words and phrases that might once have seemed harmless are now regarded as racial, homophobic and sexist slurs”. As reflected in a claim for racial harassment, upheld after an employee of Indian origin was called a ‘cheeky monkey’. However, the tribunal accepted this could, in other circumstances, have been considered innocent banter.

What can you do?

Outcomes such as this demonstrate how hard it can be to monitor colleague interactions as an employer. Comments may rely on context. There is often a fine line between what may be considered harmless banter and what may amount to unlawful discrimination or harassment under the Equality Act.

Defending unlawful discrimination and harassment cases is expensive and time-consuming, with no limit on award sums. Therefore, employers must mitigate the risk by implementing appropriate policies and providing regular diversity and equality training for staff.

A clear path for staff to raise concerns is also essential. When employees raise such concerns, action must be clear and purposeful, bearing in mind that it may not be the member of staff who complains but a colleague who is unwilling to stand by and allow name-calling or bullying to occur.

For guidance and advice on banter in the workplace, contact employment lawyer Karen Cole today.

Note: This article is not legal advice; it provides information of general interest about current legal issues.