Blog Archives

Facebook and other online job advertisers are facing criticism because they are allowing recruiters to place job adverts that are only visible to users within a certain age bracket.   Commentators have suggested that this could be in breach of US anti-discrimination legislation.  Of course, the UK also has its own legislation against age discrimination.  Age was the last characteristic to become protected (some 40 years after sex and race) and is still the one that employers tend to forget about.  Placing a job advert in a publication or on a website that appeals to a certain demographic is one thing (although it could still perhaps be used as evidence of age discrimination, alongside other factors).  But to actively tick a box to make a job advert not visible to those outside of a certain age range shows clear intent to discriminate on the part of the prospective employer. As employment solicitors, we would advise against this sort of targeted advertising where the targeting relates to any protected characteristic.  Most recruiters would never dream of advertising a job in such a way as to suggest a candidate of a certain race, religion, sex, or sexual orientation would be preferred.  But age is one area where employers are still inclined to profile applicants.  Job adverts also need to be worded carefully: references to maximum number of years’ experience can unfairly prejudice older applicants; even specifying a minimum number of years’ experience can be risky – it should only be a requirement if it really necessary for the role;describing the type of applicant you want can be risky – “would suit recent graduate” implies a younger candidate will be preferred;even words like “mature”, “active”, or “energetic” can suggest a certain age profile.  

Two of the hottest topics in employment law recently have been worker status and holiday pay. There have been cases on whether Uber drivers, and others working in the “gig economy”, should be treated as workers rather than self-employed contractors, and therefore be entitled to benefits including holiday pay.  And there has also been a series of cases about how holiday pay should be calculated, and that it should include elements such as commission as well as basic salary.  These two topics have come together in an important decision from the European Court of Justice.  Mr King worked for The Sash Window Workshop and was engaged (by his own choice) as a self-employed contractor.  As such he did not get paid holiday.  However, after he left the company, he brought a claim in respect of holiday pay that he says he should have received.  The UK Employment Tribunal held that Mr King was in fact a worker rather than self-employed.  Therefore he should have been entitled to paid holiday.  Normally, employees have to take holiday in the relevant holiday year, or lose it, so a claim would be limited.  But in this case, the ECJ held that Mr King should be entitled to claim backdated holiday pay not just for the previous holiday year, but stretching right back to when he started working for the company.  This meant that the liability added up to a very considerable sum. The case will now be sent back to the UK Court of Appeal, but it is likely that it will follow this decision from the ECJ.  Companies that use a lot of self-employed contractors need to be aware that this status is being subject to scrutiny more and more often.  The potential bill for making the wrong decision on worker status is set to become a lot more expensive.  

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.