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At a Preliminary Hearing in April 2018 the Employment Tribunal will determine whether Jess Varnish, former GB Olympian, is an employee of UK Sport & British Cycling, and therefore entitled to bring claims of sex discrimination, detriment for whistleblowing, victimisation and unfair dismissal.This is a further example of where employee status is being challenged in the tribunal, with potentially huge ramifications.

The charity Maternity Action has just published a report on pregnant women and new mothers being at increased risk of redundancy.  The report quotes statistics that show that 77% of pregnant women and new mothers surveyed in 2016 complained of suffering discrimination.  This compared to 45% in a similar study from 2005.  So the problem seems to be getting worse, not better.Of course, it is already unlawful to make a woman redundant for reasons connected to maternity.  But legal claims can be difficult to pursue, so the report makes some recommendations of what more could be done to protect women.  Currently, employers must put women on maternity leave who are at risk of redundancy to the front of the queue for any suitable vacancies, without having to compete with other colleagues at risk (Regulation 10, Maternity and Parental Leave regulations 1999).  But this only applies during maternity leave.  Women who are pregnant, and those who have recently returned from maternity leave, do not get this advantage.  This is despite the fact that the statistics quoted in the report show that they are also very vulnerable to being made redundant.  The report suggest that, as an interim measure, Reg 10 protection could be extended to pregnant women and to those who have returned from maternity leave in the past 6 months.   However, the report concludes that this would be insufficient to tackle the problem.  It recommends the German model, where it is unlawful for employer to make women redundant at all while they are pregnant, on maternity leave, or have just returned to work.  There are only limited exceptions to this, such as where the business is closing.  It seems unlikely that the Government is going to opt for this German model.  But if the statistics around maternity discrimination keep getting worse, then the pressure to take action might becoming overwhelming.  In that case, extending Reg 10 protection would seem like a logical first step. A link to the full report: https://www.maternityaction.org.uk/wp-content/uploads/RedundancyReportFinal.compressed.pdf

Interesting article from my colleague and head of Employment and Dispute Resolution in Construction News last week….  

A recent report commissioned by the government has estimated that approximately 300,000 people lose their jobs every year because of mental health problems.The authors of the report found that employees with mental health problems were 50% more likely to lose their job compared to those with physical disabilities.  But of course the relevant legislation, the Equality Act 2010, treats mental and physical conditions the same; either can amount to a disability if it is sufficiently serious.  Disabled employees have extra protection under the law.  Not only must employers not harass or directly discriminate against them; they also have a duty to make reasonable adjustments to accommodate them.  Reasonable adjustments are not just limited to physical features like wheelchairs ramps.  They can include:• Additional training and supervision• Extra sick leave• Flexible hours or working from home• Changing some of the employee’s duties or allocating them a different roleBut employers can only make reasonable adjustments if they are aware of the need, so this duty only kicks in when an employer knows about the disability, or if they could reasonably be expected to have known.  So employers need to be alert to any signs from their employees indicating that they may have a long-term health problem.  In particular, they should look for sick notes that refer to “stress”, which is often a euphemism for conditions like depression.  Employees need to talk about their mental health problems, and the support they need, with their employers.  This is obviously easier said than done, with many employees lacking confidence that their employers will be sympathetic or helpful.  But they should understand that the law on disability discrimination is on their side.   

The Upper Tribunal (Lands Chamber) has dismissed a landlord’s appeal against a decision of the First-tier Tribunal (Property Chamber) relating to insurance premiums charged to tenants under the terms of their leases. It held that the insurance premiums had not been reasonably incurred in accordance with s19(1) of the Landlord and Tenant Act 1985. Costs charged to a tenant through the service charge under certain residential leases should be reasonably incurred in accordance with s19(1) of the 1985 Act. In the case of COS Services Ltd v Nicholson [2017] UKUT 382, the court held that in considering whether insurance premiums have been reasonably incurred, a landlord is required to explain the process by which the particular policy and premium have been selected, with reference to the steps taken to assess the current market. Although landlords are not expected to show that their insurance premiums are the lowest in the market, tenants may place before the Tribunal such quotations as they have been able to obtain, if those policies are genuinely comparable.Landlords are free to obtain a block insurance policy should they wish to do so. However, where the insurance premium is higher than it would have been under an alternative policy, landlords should be prepared to demonstrate that the insurance policy provides the tenant a sufficient advantage and the extra cost is therefore justified.  Landlords should carefully consider both the provisions of the lease and their statutory obligations when dealing with residential service charges. If in doubt, they should seek the advice of a solicitor.

There’s been a lot in the news today about race and statistics. The Government has launched a website with the results of its race disparity audit. As employment lawyers, the Employment Tribunal statistics are obviously of particular interest to us – so what story do they tell?  In 2016 / 2017 there were 2,240 race discrimination claims issued in the Employment Tribunal. How does this compare to other types of discrimination? There are fewer claims than for age (7,500) and disability (4,000) and a lot fewer than sex (including equal pay and pregnancy – 20,000), but more than religion (400) and sexual orientation (200).  Race discrimination claims have dropped significantly since 2013, but this has little to do with improvements in equal opportunities. Fees were introduced to the Employment Tribunals in 2013 and there was a significant decrease in claims across the board. A recent Supreme Court decision abolished the fees, but that has not had time to be reflected in the available statistics.  However, we can expect the number of discrimination claims to increase this year, and the average number of race discrimination claims before the introduction of fees was 5,000 per year.   Do race claims normally succeed in the Employment Tribunal? No. Only 3% of issued claims go all the way to a final hearing and win. But an additional 36% of claims are settled somewhere before hearing – so that probably counts as a “win” for the Claimant. However, that still leaves a majority of claims that either fail at Tribunal, or get dropped somewhere along the way. This is not unique to race claims, the statistics are broadly similar to other types of discrimination claims. The only two that tend to succeed more often are disability (4% win, 42% settle) and pregnancy (6% win, 47% settle).How much are race claims worth? So few cases actually get to the stage of an award that the annual statistics can be unreliable and thrown out by a single large award. Looking at an average from the last 10 years is more helpful, and this shows that race claims tend to be the most costly of all types of discrimination, with an average award of £26,900, compared to £21,900 for sex and £15,500 for age.Source: https://www.gov.uk/government/collections/tribunals-statistics

In what may be a landmark case, foster carer Sarah Anderson fights for foster carers to receive “worker status” in an attempt to secure workers rights and protection. It will be interesting to see what approach the court takes, in an area of law which is already complex and the subject of much dispute.

…is how this case is being reported, but there was in fact a series of lewd remarks.  Remember that age is a protected characteristic too, so think twice before you make any jokes about it in your colleagues’ birthday cards!