Month: February 2023

“It’s my choice to support a particular sporting team a protected belief under the Equality Act 2010?”

With approximately 2 million people in England alone playing football at least twice a month, it is well known that there is a big sporting culture in the UK. Alongside football, other sports such as rugby, boxing, golf, tennis are some of the most popular sports of the general population.

Sporting banter is an often occurrence in the workplace. But what happens when your manager stops giving you work, or doesn’t allow you to work, because of your choice to support a particular sporting team? In the case of McClung v Doosan Babcock Ltd, the Claimant claimed that his Manager denied him work for supporting a particular sporting team.

Facts of the Case

Mr. McClung, the Claimant, was a supporter of Glasgow Rangers Football Club for approximately 42 years. Mr. McClung had described his belief, love and support of the football club as a way of life and compared the importance of following the football club to a Christian attending church. Mr McClung would spend most of his disposable income on attending football matches and he would receive a birthday card from the club each year.

Mr. McClung worked as a subcontractor for Doosan Babcock, the Respondent, between January 2019 and June 2019. He was not given any work past this date and alleges that his manager in charge of offering him work refused to give him work due to his choice to support Rangers Football Club. Mr. McClung claimed that his manager was a supporter of Celtic Football Club, historic rivals of Rangers Football Club.

Mr. McClung therefore brought a claim for unfair dismissal and discrimination due to his philosophical belief.

What did the Tribunal say?

The tribunal held he was not technically employed by the Respondent and so the unfair dismissal claim was dropped.

Turning to discrimination, the Tribunal considered the five Grainger criteria, under Nicholson v Grainger for determining whether a belief qualifies for protection under the Act, namely that:

1. the belief must be genuinely held

2. it must be a belief and not an opinion or viewpoint based on the present state of information available

3. it must be a belief as to a weighty and substantial aspect of human life and behaviour

4. it must attain a certain level of cogency, seriousness, cohesion and importance

5. it must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others

 

The Tribunal held that Mr. McClung’s belief did not satisfy four of the five tests under Nicholson v Grainger to be considered a true philosophical belief protected under the law. Therefore, Mr. McClung’s belief, whilst strong and genuine, could not be protected under the Equality Act 2010. The Tribunal held that Mr. McClung’s belief was a “lifestyle choice” which “does not represent a belief as to a weighty or substantial aspect of human life”.

As a result, Mr. McClung’s claims were dismissed at a preliminary hearing.

What should employers and employees take away from this ruling?

Sport is something that many feel passionately about. This can potentially result in a variety of issues amongst staff who support rival teams, or even those who do not favour the sport at all.

Employers and employees must be reminded of the importance of treating others with respect, even when their opinions differ. It is important to remind all staff that disciplinary action will be taken if they fail to do so.

Employers can breathe a sigh of relief as disputes involving football teams won’t risk discrimination being brought into the matter. However, there are other issues that can still lead to claims, such as bullying in the workplace; and it is important for employers and employees to remember this.

If you are an employer or employee facing a discrimination issue then please contact Lawson West Solicitors. Contact Us and we will get in touch as soon as possible.

Alternatively, please Tel: 0116 212 1000 or 01858 445 480.

Menopause Law Change

A proposal to change UK legislation in order to protect the rights of women going through menopause has been rejected by the government, partly due to concerns that this would discriminate against men.

In January 2023 it was announced that the UK government rejected committee recommendations to consult on making menopause a protected characteristic and pilot a workplace menopause leave policy in England.

Could menopause symptoms be a “protected characteristic”?

Last July, a report was published by the cross-party and women and equalities committee, seeking for menopause to be made into a “protected characteristic” (in the same way as disability and race, amongst other protected characteristics) under the Equality Act 2010. This meant that it would have been illegal to discriminate against women who were experiencing symptoms resulting from the transition of their monthly menstrual cycle to their last period. This process is something which can last as long as 10 years, but generally takes in the region of 4 years. With over 30 different menopausal symptoms including hot flushes, heart palpitations, migraines, mood changes, loss of memory and tiredness, the symptoms affect nearly every working woman in the UK and many women do suffer in their 20s, 30s, 40s and beyond.  

However, in the governments response to the report, the proposal was rejected due to concerns that there could be “unintended consequences which may inadvertently create new forms of discrimination, for example, discrimination risks towards men suffering from long-term medical conditions”. The cross-party report had also sought for the running of a pilot trial of “menopause leave”, in order to support women suffering from the symptoms, however this was also rejected by the government as they saw it not to be “necessary” with concerns that it could end up being “counterproductive”.

Outrage at government’s menopause decision

In a letter to the health minister, Caroline Nokes, Conservative MP and chair of the Women and Equalities Committee, said: “This belated response to our report is a missed opportunity to protect vast numbers of talented and experienced women from leaving the workforce, and leaves me unconvinced that menopause is a Government priority. For too long women have faced stigma, shame and dismissive attitudes when it comes to menopause. The evidence to our inquiry was crystal clear that urgent action was needed across healthcare and work settings to properly address women’s needs, yet Government progress has been glacial and its response complacent. Its refusal to even consult on reforming equalities law doesn’t make sense and we urge it to look again”.

A government spokesperson, when speaking to the Guardian in relation to the rejection of the legislation said: “We recognise that the menopause can be a challenging time for women, which is why we have put women’s health at the top of the agenda as part of the first-ever women’s health strategy for England. We are implementing an ambitious programme of work with the NHS to improve menopause care so all women can access the support they need. We encourage employers to be compassionate and flexible to the needs of their employees, and are committed to supporting more flexible working patterns – having consulted on making flexible working the default unless employers have good reasons not to”.

This report comes after a poll had suggested that healthcare for women in the UK is on par with Kazakhstan, and ranks lower than China, Australia, the US, Germany, France and New Zealand, as per the 2021 Hologic Global Women’s Health Index. Analysts cited a lack of adequate access to preventative care, such as cancer screening, blood pressure, diabetes, mental health support, and diagnosis of causes of pain behind the UK’s poor outcome. The UK scored 60 out of 100, which was three points lower than the previous year, based on a survey of more than 127,000 people by Gallup.

Lawson West Employment Solicitor, Satinder Kaur discusses the impact of this ruling: 

“Employers suffer high volumes of female workplace absence due to women having to take menopause time off as sickness, rather than it being recognised as menopause leave. Millions of female workers suffer with difficult menopausal symptoms every year and women are, by their sex, discriminated against because their male counterparts are simply not affected in the same way. If menopause was suffered by both sexes it would clearly warrant being a ‘protected characteristic’. The fact that symptoms are only suffered by female employees means that allowing Menopause Leave to women-only currently constitutes discrimination against men. The kick-in-the-teeth for women this week is the offer of cheap HRT for 12-months from 1st April, a concession that is likely to have women fuming – it’s clearly a government “Get Back to Work and Take a Pill” strategy. Women sufferors who cannot take HRT or don’t want to, are no further forward.”

Useful Links: 

BBC News:  Menopause Leave Trial – rejected by ministers

ACAS: Menopause and the Law

Sky News:

Menopause leave trial rejected by government | UK News | Sky News

1 in 10 women affected by menopause survey found, one in 10 women who worked during the menopause had left a job due to their symptoms, while others had reduced their hours, gone part-time, or not applied for promotion.

What is Perimenopause and what are the symptoms?

22 Feb 2023 – Cheaper Menopause HRT announced

Employment law is ever-changing and very complex. You will need an experienced employment lawyer who knows the ins and outs of employment law to advise you, lots of experience of handling employment tribunals and, if necessary, employment appeals.

A Solicitor who understands job types and job roles

The best employment lawyers are ones who have a broad experience of employees and employers across a number of sectors and job types. Understanding the job role in question is really important. The responsibilities and tasks undertaken by employees is not the same in every employment and every sector will be different. A good employment solicitor will have this broad expertise and be able to recognise and understand:

• implications of part-time hours, zero-rated hours and full time workers and what they can expect from employment contracts

• how to liaise with trade unions and employer HR officials where appropriate

• the law for employment contracts including holiday pay allowances, unpaid wages, time off and absence regulations, maternity and paternity allowances, sickness leave and extended leave.

A Solicitor with the best experience

Your employment solicitor needs to have:

• wide experience of employment law in action and can comment on similar cases they’ve handled in the public domain and what you can expect from your claim or case, the likely outcome(s) and duration until resolution

• wide experience of sectors and industries and roles/jobs just like yours

• wide experience of tribunals and appeals.

A Solicitor who can navigate the negotiation

Your employment solicitor needs broad expertise of:

– advising several other employers and employees with a similar case – this gives valuable insight into the best course of action, depending on which side of the dispute you are
– solicitors with both ‘claimant’ and ‘defendant’ experience will have the depth of experience to advise you
– your solicitor will be able to pre-empt future negotiation and maneuvers needed to go to the next stage in negotiations, especially when talks get tough, or you’re not getting the response you think you’re entitled to.

A Solicitor will need to assess documentation

To prove your claim or case, your solicitor will need to:

– quickly understand and grasp the claim in a nutshell
– assess the actions of either party and the evidence
– review your employment contract terms and any documentation evidence (emails, documents, supporting evidence), this can be a monster and time-consuming task
– advise you according to the current facts and your situation.

A Solicitor with a high level of legal knowledge

Not all solicitors are the same, some have greater experience levels than others and this could potentially really affect your claim.  Your Solicitor will need:

• lots of experience in employment law practice – not just the theory

• tribunal experience

• appeals tribunal experience

• knowledge to apply and to question the law and practice in your situation/claim – sometimes the law needs challenging and your Solicitor should have experience of this.

A Solicitor who knows all types of employment law

Your solicitor should have experience and success with heavy-weight claims that were complex and challenging. For example, defending a discrimination case can be based on gender, disability, race, age, sex and other protected characteristics. Each one of these protected characteristics has a whole law pertaining to it and complex legislation which applies. If you add-in harassment or bullying and find yourself with a case will multiple elements, say, a sexual discrimination case including harassment or victimisation, then your solicitor will need to have expertise in similar claims with multiple elements.

A Solicitor who really knows employer/employee rights

The employment contract you have, sets out your employment rights in the eyes of the law. Your solicitor should have confidence to understand all types of employment law and will be able to assess your rights and responsibilities and where things have gone awry.

When you speak to one of our employment solicitors either by teams-call or in person, perhaps at one of our Drop-In sessions, we ask for a copy of the employment contract, so that we can check things over and advise you in the best possible way.

A Solicitor who can handle negotiations and financial settlement

Not every claim ends in a tribunal hearing (ET – Employment Tribunal). Many are resolved beforehand (or even during) and terms negotiated between two sets of defending lawyers, the claimant and respondent.

At this time it is critical that you have appointed a solicitor who is tough and who will defend your position. Tough might mean not backing down when a low financial remedy is offered (a financial offer to settle). Tough might mean not accepting the first, second or third offer, and to persevere for more. This is down to the solicitor’s ability to assess the extent to which your claim has merit.  If you have a good claim, and the opposition has a poorer one, much can be done at the negotiation table to bring about a mutually-acceptable offer. It is important not to sell your case short and accept the first offer that‘s presented, especially if you have a good case.  The role of your employment solicitor here, is to use their judgment in assessing the merits of the case and how far to push the outcome to a positive conclusion. Some clients who come to us do not realise they have a really good case, other clients do not want to listen to how poor their case really is.  The choice of employment solicitor here is vital to get it right so that the correct level of settlement is achieved and client expectations are protected.

How to choose your employment solicitor

Speak to Employment Director and Solicitor Vaishali Thakerar at Lawson West Solicitors, Leicestershire.

“You can be assured that in our team of seven legal professionals we have solicitors with national experience and expertise covering all types of employment law to defend your employment or employer situation. We want to hear from you and we provide initial conversations which are FREE OF CHARGE and we also offer face-to-face Drop-In sessions in our Leicester and Market Harborough offices. You can bring your documentation along and get a FREE assessment and we can advise on the best course of action.” 

Contact Us here.