Month: November 2023

Article written by Senior Associate Solicitor, Kate Lea:

The 3^rd December 2023 marks the International Day of Disabled Persons. First launched in 1992 it recognises visible and invisible disabilities and aims to promote the importance of inclusion in life and the workplace. An annual event, World Disability Day is hosted by the United Nations and encourages business leaders across the globe to value the unique contributions of disabled people.  

During my career I have had the pleasure of supporting and representing some incredibly talented and gifted disabled people.  Sadly, all too often this was lost of their employer, who saw them as a burden rather than the asset they could be had the business provided the support and tools needed to remove barriers and allow them to truly shine. 

So, with International Day of Disabled Persons approaching I thought I would take a moment to reflect and consider how businesses can better support disabled people in the workplace.

Host a Training Session

The best way to ignite meaningful change in a workplace is to engage in meaningful conversation.  Increased knowledge and awareness are key. Anyone can be affected by a disability, so it is important to ensure all employees understand the importance of accessibility to cultivate an inclusive culture.   Training helps to better understand the needs of disabled workers (and customers), makes you aware of your legal duties and responsibilities, transforms perceptions and validates disabled workers.

Recognise Neurodiversity

Over the years I have seen the number of clients with neurodiversity conditions, such as ADHD and Autism rapidly increase.  Employers cannot ignore such common, invisible disabilities. Symptoms vary significantly and can be difficult to understand but ignore them at your peril. It deserves repeating.  Training and knowledge are crucial.

Improve Accessibility & Inclusion

In the workplace, several common hurdles can prevent disabled employees from performing at their best. From wheelchair ramps, screen readers, braille signage, accessible toilets, quiet rooms, modified IT.  It is important to cater to workers of all abilities and consider how your workplace may impact a disabled person. Creating an accessible environment is not always easy and so, if you are unsure seek expert advice from the disabled workers GP, Access to Work, Occupational Health or treating specialist. 

Review Policies

Review and strengthen policies to ensure they are fit for purpose. And remember policies are not mere ‘lip service’ but should be adhered to and enforced.

These are just a few things upon which businesses can reflect to become better employers.  I do believe things are improving.  However, every week cases fall on my desk where businesses have fallen short of their legal duties. There remains room for improvement.

To underline this point research published this week by the TUC made sombre reading.  It suggests that disabled workers earn around a sixth less than non-disabled workers. It estimates the pay gap for disabled workers across the board is £1.90 an hour, equivalent to £66.50 a week. Over the course of a year, disabled workers earn almost £3,500 less if they work a 35-hour week.  To put this in context this means that from 14 November they effectively work for free for 47 days of the year! As a non-disabled person, you would not tolerate this.  Why should they?

We all have a part to play in making the workplace a better place for disabled person.  Do your bit on 3 December.

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How language links with race discrimination

Language is a protected characteristic under the Equality Act 2010, due to the fact that language is directly linked to nationality. Race discrimination in the workplace is unlawful under the Equality Act 2010, and race is defined to include color, ethnic or national origins and nationality. Language, therefore, being a key characteristic of an individual’s national identity, falls within the protected characteristic spectrum.

It is also important to note that protection from race discrimination in the workplace covers not only employees, but also job applicants and even some self-employed people. Unlike unfair dismissal, an employee does not need two years of service in order to bring a claim for race discrimination.

Legal position of prohibiting foreign languages in the workplace

Since language is a fundamental element of nationality, it is clear that it also directly links to race. The issue for concern here is whether an employer can prohibit employees from speaking their native language in the workplace. The legal position is that in most instances, employers are not able to prohibit employees from speaking their native language at work, however, there are exceptions to this.

Prohibiting employees from speaking their native language may be considered direct discrimination if it disproportionately affects individuals of a particular national or ethnic origin, or it may be considered indirect discrimination if it puts certain groups at a disadvantage and cannot be objectively justified.

On the other hand, if an employer has a policy that employees must only speak English at work, even though this policy would apply equally to all employees, it may disadvantage an employee of a particular race, which would be considered indirect discrimination.

It is also worth noting that, in cases of direct discrimination, an employer would have to prove that their decision to prohibit employees of speaking their native language is completely unrelated to their race.

There is surprisingly little case law of discrimination cases involving language, however, in Dziedziak v Future Electronics Ltd, a Polish employee was having a conversation with another colleague at work in Polish. She was then told that she couldn’t speak Polish at work and that another colleague in the office had complained. The treatment of the Polish employee was considered to be direct race discrimination and this claim was successful.

Defenses for Employers

There is, however, a defense for employees, shown in the case of Kelly v Covance Laboratories Ltd, which was an animal testing laboratory which had regular assaults on its employees by animal rights activists as well as undercover activists. The Claimant in this case was speaking Russian often at work and on the phone, causing managers to become concern that she was an undercover animal rights activist. The Employer then implemented an English speaking policy at work, and this was upheld by the Employment Appeal Tribunal, as there was a good reason for the policy, which was to protect the security of the laboratory and the staff within it.

Final Remarks

It is also important to note that blanket bans on speaking native languages may be unnecessary and can contribute to a less inclusive environment and can lead an employer open for a discrimination claim. Therefore, employers should always seek legal advice to ensure that any language policies comply with the Equality Act 2010.

If an employer is looking to restrict the use of foreign languages in the workplace, they must have a justification to do so, such as:

• Safety Issues

• It is causing bullying and harassment.

• Customer communication is being impacted.

Even though there may be some exceptions where employers could prohibit employees from speaking their native language at work, more issues may arise from this, rather than benefits. The potential for a discrimination claim against an employer who puts these policies in place is high. To avoid this risk, should avoid considering policies that could affect employees under the protected characteristics of race, unless they can definitely demonstrate that the reason for this policy is not related to race at all.

If you feel that you have been discriminated against because of your race or using your native language at work, or if you are a business and are considering implementing a language policy, then please contact us on 0116 212 1000

Nearly 3 million low-paid workers will receive a pay increase of almost 10% next spring after the chancellor announced an increase in the national living wage to £11.44 an hour.

The chancellor, Jeremy Hunt accepted in full the recommendation of the LPC – the body set up to advise ministers on the level of the national legal minimum wage – by announcing the largest ever cash increase in the low pay floor.

Upcoming wage changes:

• The increase from £10.42 to £11.44 comes against a backdrop of a cost of living crisis in which inflation peaked at 11.1% – the highest in 40 years.
• Eligibility for the national living wage (NLW) will also be extended by reducing the age threshold from 23 to 21.
• According to the Treasury, a 21-year-old will get a 12.4% increase, from £10.18 this year to £11.44 next year, worth almost £2,300 a year for a full-time worker.
• National minimum wage rates for younger workers will also increase, with those aged between 18 and 20 getting a wage boost to £8.60 an hour – a £1.11 hourly pay rise.

“Good News for Young Workers!”

The NLW was introduced in 2016 and currently sets the minimum hourly pay for those over 23. This is good news for your workers. The news was welcomed by the TUC and was hailed by Conservatives, as a demonstration of their ability to deliver on their previous pledges to increase standards of living for low paid workers. However, many small businesses will now be reflecting on how they can meet these increased costs in a demanding economy with constrained profit margins.

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Speaking at a fringe event at the recent Labour Party Conference, Anneliese Dodds, Shadow Women and Equalities Secretary announced the Labour Party’s proposal to double the time limit for bringing an Employment Tribunal claim. This decision is poised to have far-reaching implications for both employees and employers, sparking debates on the balance between worker rights and the needs of businesses.

The Employment Tribunal is a crucial forum for resolving disputes between employers and employees, covering a wide array of issues such as unfair dismissal, discrimination, and wage disputes. The standard time limit for bringing a claim to the tribunal is generally speakingthree months less one day from the date of the alleged incident. However, the Labour Party’s decision to extend this period should they regain power to six months marks a notable departure from the status quo.

Proponents of the policy change argue that the extended time limit will provide employees with a more realistic opportunity to file claims and will allow more space for negotiations to take place.  Although the law does afford tribunals the opportunity to exercise their discretion to allow claims to be issued out of time, this is the exception rather than the rule meaning that all too often employees and workers who are battling health issues or who are pregnant are dissuaded from pursuing meritorious claims… This move aligns with the Labour Party’s broader commitment to strengthening workers’ rights and ensuring a fair and just workplace environment.

On the other hand, critics express concerns that the extended timeframe may lead to increased uncertainty for businesses, potentially affecting their ability to manage and plan for legal liabilities effectively. Some argue that a more balanced approach, perhaps involving incremental changes or targeted reforms, would have been preferable to address the concerns of both workers and employers.

It is essential to consider the broader context within which this policy change is taking place. The Labour Party’s decision comes at a time when discussions around workers’ rights, corporate responsibility, and social justice are gaining momentum globally. With increasing scrutiny on workplace practices, the party’s move can be seen as a response to the evolving expectations of both the workforce and the general public.

As this policy change unfolds, it will be crucial to monitor its impact on the dynamics between employers and employees. Will the extended time limit result in a fairer and more accessible tribunal process, or will it introduce new challenges for businesses navigating the complex landscape of employment law?

In conclusion, the UK Labour Party’s decision to double the Employment Tribunal claim time is a noteworthy development in the ongoing dialogue about workers’ rights and the balance between employee protection and business interests.