In case it were needed, the Daily Telegraph today reported on a case where “laddish” behaviour in the workplace led to a substantial payout for the female Claimant, Miss Angelina Ashby, which included £15,000 for injury to feelings and £9,158 for loss of earnings.  Read the article for the details, but this case should serve as a reminder that this sort of behaviour just isn’t acceptable in the workplace.

Male workers made unpleasant jibes about her weight and appearance and viewed pornography online.  When she issued a grievance she was criticised for being too sensitive and “unmanageable”.  She won her claim for sex discrimination and constructive dismissal against her employers. There are no great surprises there.

However, two aspects of this story stood out for me from this report.  The first was that the employer worked on Ministry of Defence marine contracts, which must mean that at some point they had been through a tendering process.  Many (but perhaps not all) tendering processes for government and QUANGOs often require that the employer adheres to employment law best practice.  Was that the case here, as clearly, in this instance, what was going on was as far from employment best practice as you could imagine?

The second factor is that Miss Ashby lost her equal pay claim.  She was reportedly paid £13,500 per annum in her role as a sales executive, while three male sales executives were paid £24,000 and this was justified on the basis that they were “proactive”.

I wonder what this means?  That they simply brought in more business than Miss Ashby? I assume, although we are not told (and this is only a report in a newspaper and not a legal journal) that she brought her equal pay claim on the basis of “like work”, which means work which is of the same or broadly similar nature in which there are no differences of practical importance in relation to terms and conditions of employment”.  It will be interesting to know how the difference in this case was justified if it was other than simply based on commission earned.

No related posts.

Men Behaving Badly originally appeared on Jobsworth by Michael Scutt on 12/12/2011.

Last week being half-term and all, and with the Junior Jobsworths being packed off to their grandparents at Cold Comfort Farm, Mrs J and I went to the cinema.  Not just the little arts centre which shows the odd worthy foreign language film, but the proper cinema with 20 screens and 5 flavours of popcorn, none of them edible.

We saw “Made in Dagenham” and I went to see it, dear reader, just for you.

For those who haven’t seen it or don’t know anything about it, it has a link with employment law and the (now defunct) Equality Act 1970, which I’ve written about before.  The film tells the story of the women sewing machinists at Ford’s massive Dagenham factory who went on strike in 1968 to secure equal pay for the skilled work they did sewing the trim and seats for Cortinas, Escorts and Anglias.

It’s a compelling story as well and the film brings out the deep unfairness in gender based pay inequality well.  It’s a film that is long on emotion and short on hard facts but, hey, this is prime time entertainment.  And in entertaining it succeeds; I didn’t look at my watch once throughout and that is always my objective test for a film.  The opening credits of the factory and the voice-over about the size of the factory  and the numbers of cars it was producing put me in mind of the opening parts of The Full Monty – similar style and approach.  This film, though good, is not up there with the Full Monty: it lacks the sustained humour and, maybe, some of the sentimentality of the earlier film.  It doesn’t want for a cracking cast: Geraldine James, Bob Hoskins, Rosamund Pike, Rupert Graves and in Sally Hawkins, a fine lead actor.

There were some irritations though.  The plot manipulation to bring Rita O’Grady, played by Hawkins, into contact with Lisa Hopkins, Pike’s character, was far-fetched.  In the story the two ladies literally bump into each other at their sons’ school to complain about a brutal teacher.  O’Grady leads the strike, Lisa is married to a senior Ford executive involved in trying to break the strike.  The purpose: to allow Pike’s character to tell O’Grady that although she has a first class Oxford degree her husband treats her like an idiot.

That leads on to my central gripe: the film is two-dimensional. Miranda Richardson does a good turn as Barbara Castle but her two male advisers might have been based on Tweedle-dum and Tweedle-dee.    All the women are portrayed as put upon and naive, at least until they go on strike, whereas the men are portrayed as lazy buffoons (apart perhaps from Bob Hoskins who does his lovable Cockney geezer routine).

When I pointed this out to Mrs J she simply said “So? That’s as it is”.

Apart from that though it is a good, entertaining film and I would recommend going to see it.  It’s got good pace, tells a powerful story and has a soundtrack that will have you humming along.

Related posts:

1. The Equality Act: Here at Last – Worth the Wait?

Jobsworth Goes to the Movies originally appeared on Jobsworth by Michael Scutt on 02/11/2010.

Today marks the introduction of the long-awaited Equality Act (EA10), a piece of legislation proposed by Labour and brought in by the current government.  Click here for the BBC’s story on it. Coincidentally perhaps, today also sees the general release of the film “Made in Dagenham” about the 1968 strike by women at the Ford car factory over sex discrimination and is credited with having led to the Equal Pay Act 1970.

I’ve written several pieces about EA10 on this blog just recently and I’ll add more from time to time.  Despite all the fanfare though, there are significant questions being asked about the effect the Act will have on the cause of equality in this country. Yes, employers will have to stop using pre-employment health questionnaires and will need to beware of third party harassment claims but, in the main, EA10 just consolidates the previous law and does some tinkering at the edges.  More provisions will come in over the next couple of years, such as dual discrimination claims, but for the time being things look pretty familiar.

Undoubtedly great strides have been made over the last forty years to make racism, sexism, homophobia etc unacceptable in society and quite right too. However, the Equal Pay Act 1970, which is abolished by EA10, was a failure: it is very complicated and expensive to pursue claims and 40 years on, there is still very significant gender based pay inequality in the workplace.  According to a report in The Guardian last month equal pay for women will not arrive until 2067.  The Chartered Management Institute conducted a survey which showed that women’s salaries increased by 2.8% on average over the last 12 months, compared with 2.3% for men, but male managers (on average) are paid £10,031 more than women managers. The situation is worse in the IT and pharmaceutical sectors than other sectors of the economy and the UK sees more gender pay inequality than elsewhere in the European Union.

The last Labour government planned to make employers disclose gender pay levels and to ban “pay secrecy” clauses in contracts of employment.  That hasn’t happened and the final position is more complicated. Pay gagging clauses are now unenforceable and employers need to consider whether to remove them from the contracts they hand out to new employees.  EA10 protects employees who discuss their pay with colleagues for the purpose of “making or seeking to make a relevant pay disclosure”.  In other words, if the employee is trying to ascertain whether they are being underpaid because of discrimination on the grounds of any one of the protected characteristics (and not just gender) under the Act, it would be unlawful for the employer to discipline them or to victimise them because of making or seeking that information.  The problem for employers is to determine when a “relevant pay disclosure” has been made – get it wrong and a claim for victimisation might arise.

Pay inequality is not going to be removed until full disclosure is required.  The current government is said to be considering its position on this issue. However, to force employers to disclose gender pay levels is going to be politically risky and might lead to discord between the parties in the Coalition Government.

The Government Equalities Office has published a useful guide to EA10 – click here to access it.

Related posts:

1. The Equality Act 2010: 24 Days and Counting #1
2. The new Equality Bill
3. What Should Employers do About Third Party Harassment: Equality Act 2010 #4

The Equality Act: Here at Last – Worth the Wait? originally appeared on Jobsworth by Michael Scutt on 01/10/2010.

Redundancy hasn’t been in the general news recently, although Eversheds, the national law firm did hit the headlines when it was successfully sued by a male employee it selected and made redundant.  He alleged that he had been the victim of sex discrimination because he was not scored as well as a female colleague, in the same selection pool, who was on maternity leave at the time. She was scored more favourably because the firm feared doing anything else would have exposed them to a claim for sex discrimination from her.  Eversheds are appealing the decision.

This is an unusual case and not just because it was a man who was claiming he had been treated less favourably than a woman.  For a claimant (employee) it is usually quite difficult to challenge the selection pool and rationale for making the cuts: it is usually easier to criticise the process used.  The Eversheds case highlights to employers that they need to be very careful how they draft and implement selection criteria.

If you need advice on any aspect of redundancy, whether you’re an employer or employee, please do get in touch with me: 0207 464 8433 or michaelscutt@dalelangley.co.uk

Related posts:

1. Redundancy Selection: Now Harder for Employees to Challenge?
2. Redundancy – Have You Got The Right Pool?
3. How Should Employers Select Employees for Redundancy?

Redundancy Revisited originally appeared on Jobsworth by Michael Scutt on 30/05/2010.

Most people know that employers these days shouldn’t in job interviews ask women of child-bearing age when they intend to start a family.  Nor should they now ask potential employees how old they are.  The reason in both cases is that (a) it is usually going to be none of the employer’s business but, also, (b) it runs the risk of the applicant/employee later stating that the failure to appoint them was on discriminatory grounds. A report on the Personnel Today website from a few days ago questioned the wisdom of Cherwell District Council in asking employees to state whether they intended to retire in the next two or three years.  The Council is currently asking staff to work fewer hours or to work without pay to avoid the need for redundancies.  However, its request to staff to detail their plans and aspirations over the next two to three years could lead to them facing an age discrimination claim, suggests the article, if an employee could show that they were selected for redundancy because of their stated plan to seek retirement.  The same risk would apply if a woman stated she intended to start a family and was subsequently place “at risk”. 

The central difficulty in any such case is proving that the employer selected the employee for redundancy on discriminatory grounds.  I recently advised a client who was made redundant having advised his employer some months earlier that he intended to emigrate in a few years’ time.  He suspected that the employer therefore saw him as someone who wouldn’t be with the business long term and was this less likely to be as upset about having his employment terminated compared with someone who was, apparently, fully committed.  The employer, of course, denied that factor had played any part in their decision and the matter settled without Employment Tribunal proceedings.

Employers may see asking employees about their future plans as being a much easier way to select candidates for redundancy, but it is fraught with danger and may well embroil the employer in unwanted litigation if it took any action of any sort against the employee. Discrimination claims are not subject to the maximum cap on compensation that applies in unfair dismissal claims (and currently stands at £66,200). An employee who considers that their selection for redundancy was unfair can bring a claim for unfair dismissal (provided they have at least 12 months continuous employment experience of course) but that claim will be limited by the cap: not so with a claim based on discrimination as the reason for selection. Note to employers: just don’t do it.

Related posts:

1. Leaving your job? Three things not to do before you get your P45

Things employers shouldn't ask … originally appeared on Jobsworth by Michael Scutt on 02/09/2009.