November Newsletter

Welcome!

Welcome to our Autumn newsletter.  What happened to the summer edition you say?  Well, summer’s lease has all too short a date – too hot the eye of heaven shone, and so I didn’t get around to it.  But speaking of temperature, last month saw the resurgence of the age-old argument of office temperatures and (forget Brexit) the question of the day was, can a room temperature be sexist?

Sex and the City actress, Cynthia Nixon, recently found herself at the forefront of a social media debate when she declared that she felt she had, as a woman, been disadvantaged by freezing room temperatures at a venue.  Her team went to the extent of emailing event organisers to request the room to be heated to 24C prior to the actress’s arrival.  This sparked a huge response with many people siding with Ms Nixon, agreeing that many public and work spaces are often “too cold” for women.  A renowned professor argued “I feel like cold office temperatures are a burden that are placed on women”.  She added: “I feel like it affects performance in a way that is surprising to people.  I become less effusive, less articulate, less extroverted when I’m uncomfortable with the temperature.”

The New York Times referenced a 2015 study which pointed out that office buildings still set their temperatures based on male metabolic rates.  This is (second only to parking) a prime office ‘hot potato’ and all we can suggest is private climate-controlled office bubbles which have the added benefit of cutting out office ‘bantz’ (or any unpleasant interaction with colleagues whatsoever):

What is covered by “philosophical belief” for the purposes of discrimination claims?

Whilst the belief that arose in a recent case (Gray v Mulberry) might not regularly be raised in the workplace, it is a good reminder to think about what will potentially be covered by “philosophical belief” under the Equality Act (and thereby protect the owner against discrimination).  A protected belief is defined by the Act as “any religious or philosophical belief and a reference to belief includes a reference to a lack of belief”.

In the Gray v Mulberry case, the employee claimed that her belief in the right to own the copyright of her own creative works was a philosophical belief and therefore a protected characteristic.  The EAT held that it didn’t qualify as a belief under the Equality Act 2010 as it lacked cogency.  But the claim was taken very seriously.  It is worth noting the criteria the Tribunal will consider when ruling on this type of claim.  The belief must:

• Be genuinely held;
• Be a belief, not an opinion or viewpoint based on the present state of information available;
• Be a belief as to a weighty and substantial aspect of human life and behaviour;
• Attain a certain level of cogency, seriousness, cohesion and importance; and
• Be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.

Examples of such beliefs include: the importance of public service broadcasting; the existence of climate change; pacifism; abstinence from alcohol and vegetarianism.

Have Employment Tribunal claims increased?

Fees for lodging employment claims were introduced in July 2013, with the purpose of deterring vexatious litigants, saving time and raising income for Tribunal services.  However, it was subsequently held that all the introduction of fees really did was act as an obstacle to right of access to justice.

Four years later, in June 2017, the Supreme Court ruled that fees were unlawful and would be scrapped.

The number of single claims received per quarter was 68% lower between October 2013 and June 2017 (whilst the fees were in place).

Since the fees were scrapped, claims more than doubled to 9,252 in January- March 2018.  In the year until June 2013, the Tribunals received on average, just under 13,500 single cases per quarter.  Southampton Employment Tribunal has an additional problem in that it has a shortage of Judges.  This has resulted in the increased cancellation of hearings at short notice.  To give you some idea of the scale of the issue, we had a five-day hearing cancelled two weeks ago with re-scheduling likely to be in the Spring.

Is looking for a “young lad” unreasonable?

A roofer recently advertised via Twitter for a “young lad” to help him out with his work.  More specifically he didn’t want any “lazy s****s who want £100 a day and sit on their phones”.  Quite understandably, he required that applicants “have good personal hygiene and no lip”.  Twitter, as it has a habit of doing, went ballistic. As usual, the Twitter community was polarised with responses expressing outrage/ huge approval at its sexist connotations.  The roofer doubled down saying he has a wife and two daughters so he knew what women were capable of.  A cursory glance at the Olympics might have given him a more rounded view but it’s difficult not to have some admiration for the honesty in the rest of the advert.

How can the menopause impact women at work?

This is an interesting question that has recent become a focus for employers as a result of two topical Employment Tribunal decisions.

It is widely known that women suffer a number of symptoms both physically and psychologically during the menopause but what many do not realised is that these symptoms can be exacerbated by aspects such as demanding workloads and deadlines and hot or poorly ventilated rooms.  A 2017 Government report found that a high percentage of women have in fact even considered leaving their employment as a result of the intensified impact that work has on their symptoms.

The first of two recent Tribunal decisions was the case of Merchant v BT Plc in which the Claimant had provided her employer with a letter from her GP explaining that she was suffering from menopausal symptoms which would affect her concentration levels yet she was dismissed by the employer for poor performance.

The Tribunal considered it wrong of the employer not to take consideration of her condition (and for her manager to compare the Claimant’s symptoms to the experience of his own wife) and by failing to investigate how the Claimant was suffering.  The Tribunal upheld her claims for direct sex discrimination and unfair dismissal.

The second of the cases was Davies v Scottish Courts and Tribunal Service in which the Claimant suffered severe heavy bleeding which resulted in her being anaemic, emotional and to lack concentration.  The effects of her menopause transition were considered to be a substantial and sufficiently long-term impairment on her ability to perform her day-to-day activities, making her disabled for the purposes of the Equality Act 2010. 

Although this case was extreme and decided on its facts, the fact the menopause now has the potential to qualify as a disability under the Act means that employers will need to tread extremely carefully with matters of this nature and will need to look at making proactive changes to assist in reducing the risk of any potential claims.  For instance, employees should be encouraged to look after their own health and to be honest regarding the symptoms that they are suffering from.  Employers also need to ensure that managers and employees are familiar with any policy and the adjustments that can be made to assist women.

Examples of adjustments could include:

• Provision of fans to help with hot flushes;
• Reconsideration of work allocation and deadlines;
• Identify the times of day in which assistance might be required;
• Offering a quiet space to work;
• Being open to flexible working requests that may assist low mood and sleeping troubles;
• Offering counselling and/or mindfulness and meditation.

Legal 500 – “Top Tier Firm”

It is with enormous pride that we can confirm the news from the Legal 500 – for the 3rd year running we have risen in the rankings and we are now at the very top – Tier 1.  The Legal 500 says of us:

“Employment specialists DC Employment Solicitors is praised for its ‘phenomenal response times and technical knowledge that is, without doubt, exceptional’ and for providing ‘spot-on advice’. The sizeable team handles the gamut of employment, labour relations and immigration matters. In addition to handling HR advisory work, other recent work includes acting in a number of tribunal cases involving discrimination and unfair dismissal claims; acting for a commercial client in respect of its decision to derecognise a trade union; and representing a managing director in a dispute with his company. Darren Tibble is ‘exceptional in his interpretation of a situation and getting to the core issue’, Daryl Cowan ‘is very personable and commercially aware’ and Laurence Dunn provides ‘superb advice and support’. Other team members include the well-regarded Kirsty Alleyne.”

And finally …

Speaking, as we were in our introduction, of office temperatures, we found that Beyonce also has a view on the matter.  She demands her dressing room be kept at 78 degrees precisely (which, coincidentally, is the temperature that campaigners want office temperatures to be set at).  She also asks for rose-scented candles and chicken legs “HEAVILY SEASONED” with cayenne pepper.

Taylor Swift hasn’t got the hang of freebies and has gone ‘value-range’: a Starbucks latte; 3 boxes Kraft Macaroni & Cheese; 2 four-packs of Red Bull and a 12-pack of Corona Beer.

So far, so mundane.  But thankfully, heeeere’s Grace.  Grace Jones has no interest in workplace temperature – she has far more important things on her mind: 6 bottles of Louis Roederer Cristal Champagne, 3 bottles of french vintage red wine (e.g. St Emilion, Medoc, Bordeaux), 3 bottles of french vintage white wine (e.g. Sancerre, Pouilly Fuisse) and 2 dozen Colchester oysters on ice.

I know which dressing room I’d prefer to be in (and it wouldn’t be the one with scented candles, weak coffee and mac ‘n’ cheese)…