June 2016 - Sex discrimination: never out of fashion?

dan-hobbs clare-harrington

Welcome to our June blog post in partnership with highly regarded employment team from 5 Essex Court.

Five from 5

Clare Harrington and Dan Hobbs, employment barristers from 5 Essex Court  add their ‘Five from 5’ articles to our blog. Most months one of these articles will also link you through to a longer article on their own blog Five from 5 - In Depth.

We hope you enjoy reading these. If you would like to receive a discount off of your next employment law book from Bloomsbury Professional, look out for our advert further down the blog.

This month's '5 from Five'


Sex discrimination: never out of fashion?

Clare Harrington

Several stories over the last two weeks have demonstrated the continued prevalence and the different guises of sex discrimination.  Firstly Nicola Thorp shared her experience of being sent home from her temporary secretarial job at PwC because of her refusal to wear shoes with a 2in – 4in heel.  The publicity no doubt prompted the outsourcing firm responsible for her placement to immediately change its uniform policy, permitting colleagues to wear plain, flat shoes however the very existence of such a policy in 2016 was a surprise to many.

Meanwhile, Muirfield, the well known Scottish golf club revealed that voting in favour of allowing women to join had fallen just short of the required two thirds majority and whilst Scotland’s First Minister Nicola Sturgeon tweeted that the stance was ‘simply indefensible’, a group of ‘no’ campaigners from among the Club’s members cited concerns about slow play and making women ‘feel uncomfortable’ amongst the ‘risks’ of admitting female members.  It is also to be noted that such a vote was not unprecedented with a vote last year by members of The Garrick Club in London garnering the same result – retaining the ban on women members. The BBC quoted one member of the Garrick as saying that a male only membership allowed for better ‘camaraderie and banter’.

And whilst equality for the sexes in terms of membership to clubs was on the agenda in Scotland, in the USA, House of Cards star Robin Wright revealed she had had to demand the same pay as her co-star Kevin Spacey in respect of her role in the tremendously popular television series.  Before an audience in New York, Ms Wright explained that she had threatened to leave the show unless she was paid the same as Spacey.

Statistics from the US government show that, on average, women are paid less than their male counterparts; 79 cents for every dollar a man earns.  This, of course, echoes the ongoing difficulties with regards to attaining equal pay in the UK with the Office for National Statistics confirming that in 2014 the gender pay gap had decreased to 9.4% from 9.6% with the gap changing relatively little over a 4 year period.  The TUC’s analysis of official statistics shows that highest paid men are paid 54.9% more than their female colleagues.

Of course the Equality Act 2010 makes it illegal to discriminate against someone because of their gender.  However associations and private clubs are permitted to restrict membership to people who share a particular protected characteristic.

Maybe what is demonstrated by this raft of recent stories, is the cultural shift and learning that is still required to ensure women are permitted to join the same clubs as men, adhere to comparable uniform requirements and to be paid equally.  As the Women’s Equality Party states,

‘Equality for women isn’t a women’s issue.  When women fulfill their potential, everyone benefits.  Equality means better politics, a more vibrant economy, a workforce that draws on the talents of the whole population and a society at ease with itself.’

Sadly, the UK still appears to have some way to go.



Indirect religious discrimination - Pendleton v Derbyshire District Council (UKEAT/0238/2015) 

Victoria von Wachter

When the Claimant refused to end her marriage with the husband who has been convicted of sex offences she was dismissed.  The Claimant , a teacher with an unblemished work record, held her marriage vows to be so sacrosanct that she was not prepared to divorce her Head Teacher husband even after he was convicted of sex offences (making indecent images of children and voyeurism)
She was dismissed by her employing school and claimed unfair dismissal and indirect religious discrimination.  The Employment Tribunal at 1st instance rejected her discrimination claim but allowed her unfair dismissal claim holding that the school has failed to show that dismissal was for a fair reason.
The Claimant appealed the rejection of her discrimination claim and the EAT held that the school had applied a PCP of dismissing an employee who failed to end a relationship with a convicted sex offender.  The Claimant’s strong Christian ethic meant that she held her marriage vows to be sacrosanct and so was unable to comply.

The EAT held that as the Claimant belonged to a group that held a strong belief in the sanctity of marriage vows, she was put at a disadvantage by the school’s PCP (from which it did not resile). Accordingly indirect discrimination had been established. Furthermore there had been no justification for the school taking this draconian approach.


Could a belief that public money was being wasted be protected by the Equality Act 2010?

Alice Meredith

In Harron v Chief Constable of Dorset Police UKEAT /0234/15/DA the Claimant, who worked for Dorset police, claimed he held a “belief in the proper and efficient use of public money in the public sector”, had felt compelled to express this belief, and had suffered discrimination as a result.

The ET assessed the Claimant’s belief to be genuinely held, and the Respondent did not challenge that it was a belief worthy of respect. However, the ET held that it failed to meet the three remaining of the five necessary criteria for a philosophical belief expressed at paragraph 24 of Grainger plc and Ors v Nicholson UKEAT/0219/09, and therefore did not merit the protection of the Equality Act 2010.

The EAT allowed the Claimant’s appeal on the grounds that the ET had not indicated in its decision that it had had in mind the proper approach to the criteria expressed by Lord Nicholls in R (Williamson) v Secretary of State for Education and Employment [2005] 2 AC 246, and had given insufficient explanation of its reasons for holding there had been a failure to meet the criteria.

The EAT remitted the case for re-determination of this issue, recognising that it had been open to the ET to conclude that it was not a protected belief, but warning the ET (and thereby providing a cautionary reminder to employers!) that threshold requirements for what can constitute a philosophical belief should not be set too high.



When are staff handbooks incorporated into employment contracts?

Peter Taheri

In Department for Transport v Sparks [2016] EWCA Civ 360, the Court of Appeal provided a helpful reminder of the considerations behind the answer to this vexed question. The answer of course is: ‘it depends on the circumstances’.

In a judgment with which Lord Dyson MR and David Richards LJ agreed, McCombe LJ reminded us of the fundamental question underlying this issue: What were the contractual intentions of the employer and employee? Even where a handbook is expressly incorporated by general words, it is still necessary to consider whether the particular passage in question
is “apt” to be a contractual term.

McCombe LJ held that the starting point for considering ‘aptness’ is the language of the employment documents as a whole. Each document should be analysed in its own terms. The case law provided certain relevant, but somewhat overlapping, considerations:

- the importance of the provision in question to the overall bargain between the parties
- whether, properly interpreted, the passage was to be construed as conferring rights on the employees or only setting out good practice for the employer to follow
- whether or not the procedure in question was designed to be flexible and informal inconsistently with creation of contractual rights
- the certainty, or vagueness, of what the provision requires
- the level of detail prescribed by the provision
- whether the wording of the provision, read on its own, is clearly of a contractual nature and not contradicted by any other provision in the documentary material constituting the contract;
- in the judge’s words, does it “have a life of its own”?
- the context of the provision: Is it included amongst other contractual provisions or amongst other guidance? (Albeit that this is not a conclusive consideration); and
- whether the provision is workable (a ‘business efficacy’ test)



Don't expect to retire too soon!
Some interesting dates to put into your diary

Daniel Hobbs

Shared parental leave is extended to grandparents
Shared parental leave is to be extended to allow grandparents to take time off work.
During 2018
Equalisation of state pension age for women
The state pension age for women is equalised with the state pension age for men by November 2018, with an expedited increase from April 2016.
November 2018
State pension age rises to 66 years
The Pensions Act 2007 raises the state pension age from 65 to 66 years to reflect the ageing nature of the population.
October 2020
State pension age rises to 67 years
The Pensions Act 2007 raises the state pension age for men and women to 67.
Between April 2026 and April 2028
State pension age rises to 68 years
The Pensions Act 2007 raises the state pension age for men and women to 68.
State pension age rises to 69 years
In Autumn statement 2013 the Chancellor of the Exchequer indicated that the state pension age for men and women is likely to rise to 69 from the late-2040s.





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