UK: Employment And Immigration Update November 2017

Last Updated: 4 December 2017
Article by Ogletree Deakins

Can the position of a potted plant on a desk constitute an act of race discrimination?

Employment law sees its fair share of unusual and wonderful cases, and the following is no exception. It shows how the norm to one person can be extremely offensive to another, resulting in a very lengthy and expensive court battle before the employment tribunal. A worker for Westminster Council alleged he had been subjected to direct race discrimination, racial harassment, and victimisation. Mr Benyam Kenbata, who describes himself as a Black British African, made 29 allegations against his employer relating to an overgrown potted plant on his manager's desk.

Facts of the Case:

  •  On 2 April 2014, Mr Kenbata wrote an email to his head of department, Mr Low, complaining that the potted plant on his manager's desk made it difficult to communicate with colleagues in certain sections of the office. He said it blocked his view and was a form of racial segregation.
  •  On 3 April 2014, Mr Low responded to Mr Kenbata's email in person and discussed the issue with him in the open plan office.
  •  The HR department became involved and suggested the real problem was the size of the potted plant and that it had grown too high. They rejected the claim that it was a race issue.
  •  It is unclear what happened after this, however, Mr Kenbata left his employment at the council in June of 2014 and issued employment tribunal proceedings. He made 29 different complaints against the Council including a number of specific matters in relation to the potted plant.
  •  At the tribunal, all but one of Mr. Kenbata's claims were dismissed. The only claim to succeed - purely based on a technicality - was that of victimisation. The tribunal refused to make any order for compensation in Mr Kenbata's favour, as they believed he had acted in bad faith. The concession made by the tribunal was that his manager, Mr Low, should have conducted the conversation regarding the potted plant with Mr Kenbata in private and not in the open plan office.
  •  Having incurred legal fees of over £50,000 defending Mr Kenbata's claims, the Council sought a costs order. The tribunal acceded and ordered Mr Kenbata to pay £10,000 in costs to the Council.

Judgment of the Employment Appeal Tribunal

Mr Kenbata appealed to the Employment Appeal Tribunal (EAT), which remitted the case back to the original employment tribunal on the grounds that it had not properly addressed certain allegations.

The EAT found that the tribunal had to address the racial harassment claim on the basis that Mr Kenbata had been acting in good faith throughout. On that basis, Mr Low's discussion with Mr Kenbata in the open plan office was determined to have been racial harassment after all. Mr Kenbata was awarded £1,000 compensation.

The decision of the employment tribunal on remission

The tribunal declined to order the Council to refund Mr Kenbata his tribunal fees due to the Supreme Court's recent decision to declare tribunal fees unlawful. Based on that decision, he would be receiving his fees back anyway.

The tribunal ultimately found no evidence that "race was an issue in the office" and upheld the £10,000 costs award due to Mr Kenbata acting unreasonably in respect of his other claims.

Likely impact on your organisation

This case is an example of how employees' perception can cause conflict within a workplace. An action that one party may think is innocent and harmless may be viewed as offensive and discriminatory to another. Employers may want to ensure that they deal with any grievances in a sensitive and serious manner in accordance with company policies and procedures. In particular, issues should be discussed in private on a confidential basis.

Teacher awarded over £50,000 in compensation after bosses 'brushed off' sexual assault

A former special needs teacher at Warren School in Suffolk has won her claim of unfair dismissal and indirect sex discrimination. Only identified as "Ms C," the teacher was awarded more than £50,000 after it was suggested by her manager, Ms Bird, the head teacher, that it was part of her job to deal with "challenging behaviour."

Facts of the Case:

  •  Ms C was a teacher at Warren School, which is a school for pupils with learning difficulties. She had taught students with learning difficulties for almost two years.
  •  On 16 June 2016, Ms C was sexually assaulted by a 17 year-old male pupil who put his hand up her dress and intimately grabbed her. When told to stop, he slapped her on the arm several times. Then, when she walked away, he ran after her and pushed her in the back.
  •  Ms C, who was upset by the incident, reported the assault to management. Ms Bird, the head teacher, made a comment "to the effect that it [was] part of the job to deal with challenging behaviour".
  •  Ms C returned to work the next day but had to go home in the afternoon as she was too upset by the incident. She tried to attend a course the following week but broke down in tears and again left early. At that point Ms C began a period of absence from work from which she did not return.
  •  On 7 July 2016, Ms C attended a return-to-work interview and was left "utterly devastated" after being shown a document entitled, "Advice for Working with Pupil A." She felt the document implied that she had acted inappropriately and criticised her for wearing a dress in the classroom. Ms C was told that the parent of the child did not think that the assault was a sexual assault, and, although the pupil had since been moved to a new school, the head teacher failed to ensure that a note of the incident had been passed on.
  •  During the time Ms C was signed off from work, she was referred to specialist counselling and cognitive behavioural therapy by her general practitioner. She was suffering from a "severe range of anxiety symptoms" and "significant emotional distress and she remained unfit to go back to her role". Ms C resigned from her employment on 13 December 2016 and claimed indirect sex discrimination and unfair dismissal at the employment tribunal.

The tribunal Judgment

  •  The tribunal found that by expecting Ms C to continue working with the pupil that assaulted her, given his known sexualised behavior, the employer was requiring Ms C to work in an environment where a sexual assault could take place. This therefore amounted to indirect sex discrimination.
  •  Other events that took place between the sexual assault and the resignation "amounted to a breach of the implied term that an employer must maintain mutual trust and confidence". Therefore, Ms C was entitled to compensation for being constructively dismissed.

Since the incident, Ms C has not been able to work full time. She has trouble sleeping and suffers from depression, which has led to difficulties with her partner. The employment tribunal awarded Ms C £33,642 for indirect sex discrimination and £18,851 for constructive unfair dismissal

Key points to note from this case

All employers owe a duty of care to their employees. This duty covers a wide range of obligations, from stopping harassment to preventing injury in the workplace. It is an employer's duty to prevent any psychological or physical harm occurring to an employee during the course of his or her employment. Not only did the employer breach its duty of care to Ms C by expecting her to work in an environment where a sexual assault could take place, it also breached the mutual trust and confidence between employer and employee in the way  that Ms Bird, the head teacher, handled the situation. In this case, the employer also owed a duty of care - distinct from its employment obligations - to the pupil and his new school. Ms Bird failed to take account of that when she failed to ensure a note of the sexual assault had been passed on to the new school.

Pledge to review and protect pregnant women and new mothers from redundancy

In January of 2017, the Government pledged to protect working mothers from redundancy in its response to a report on maternity discrimination. The Women and Equalities Select Committee carried out a report that found that the number of new mothers forced to leave their jobs had almost doubled to 54,000 since 2005. The Committee called for a system modeled after one used in Germany, in which women must not be made redundant from the time they notify their employers of pregnancy through to six months after they return to work. There are very limited exceptions in specific circumstances. A charity called Maternity Action has recently accused the Government of failing to act on its pledge and has carried out its own analysis to show that the current laws are insufficient. Government ministers have not reviewed the issue since January, nor provided a timeframe for doing so.

According to the report:

  • IIn 2016, the Equality and Human Rights Commission (EHRC) "found that 77% of pregnant women and new mothers had experienced discrimination or negative experiences during pregnancy".
  •  One in 20 mothers are made redundant during pregnancy, maternity leave, or when they return to work.
  •  Many redundancies are not genuine and are merely called "redundancies" in order to avoid discrimination claims.
  • "Maternity Action's online information on redundancy and maternity was viewed 30,000 times in the first six months of 2017", highlighting that there is a desperate need for information on this issue.

The charity is calling for improvements in guidance for employers, more information for women and support for advice services. There are 12 recommendations at the end of the Maternity Action report that encourage employers to "evaluate the retention rates for women one year after returning to work from maternity leave, as part of their gender pay gap reporting". The charity recommends extending the timeframe in which women can make pregnancy-related discrimination claims to the employment tribunal from three months to six months and for the Advisory, Conciliation and Arbitration Service (ACAS) to update its guidance information on redundancy during pregnancy and maternity.

In other news...

  1. On 10 November 2017, otherwise known as "Equal Pay Day", data was revealed to show that the gender pay gap is widening for women in their twenties. On average, men in this age group earn 5.5 percent more than their female colleagues. Research from the Fawcett Society shows that this has increased by over 4 percent since 2011. Combining all age groups, the gap is 14.1 percent. Due to the difference in salaries, women will essentially work for free between 10 November and the end of the year.
  2. A former employee of the British Council has lost her claim for unfair dismissal after she was sacked for calling Prince George "the face of white privilege". Angela Gibbins entered into a discussion on her social media account after a third party posted a photograph of Prince George and commented that he looked like "a f***ing d***head". She said, "that cheeky grin is the (already locked-in) innate knowledge that he is Royal, rich, advantaged". Gibbins' comments sparked an uproar after garnering widespread media coverage. She then reluctantly sent an apology to Kensington Palace and was suspended the next day. The employment tribunal found that the British Council was right to terminate Gibbins' employment for "reckless lack of judgment, inexcusable in someone in a senior position" and agreed it was sufficient to be held as gross misconduct.
  3. An employment tribunal has found that a charity unfairly and constructively dismissed an employee who felt she had been bullied and undermined by her manager. Janette Coyle, a social worker, resigned from her role at Action for Children after she was made to work in a small office with little natural light. She had a fear of small spaces due to an incident in 1997, when she found a body of a person who had hanged themselves. The tribunal judge said that although she did not believe that those managing Coyle had been made fully aware of her fear of small spaces and the traumatic incident from her past, they had still, on a number of occasions, been "clumsy and tactless" in dealing with her concerns.
  4. Employees that work for companies that have adopted the UK living wage will have received an inflation-beating pay rise recently. The pay rate rose by 3.6 percent to £8.75 an hour in the UK and 4.6 percent to £10.20 in London. The increase in the living wage is independently calculated and designed to reflect the "real cost of living in the UK and London." More than 150 employers have newly committed to the living wage over the past few weeks and they join around 3,600 employers that have already signed up.
  5. A teaching assistant who was dismissed for raising concerns about 11 year-olds being shown disturbing footage of the 9/11 terror attacks has won her claim for unfair dismissal against her former school. The videos, which showed people jumping to their deaths, had an age advisory for individuals over the age of 18. The children had been studying "Out of the Blue", a poem by Simon Armitage, which reflects on the attacks on the World Trade Center in New York. Suriyah Bi raised the issue with management the following day and was dismissed hours later, less than two weeks after she began her position at the school. Bi turned down a compensation offer from the school and instead took the case to the employment tribunal, which found that she had had been unfairly dismissed due to whistleblowing.


ECJ rules on non-EU residency rights

The European Court of Justice (ECJ) has ruled that a European citizen who became a British citizen did not lose the right to have her spouse from Algeria live with her in Britain under European law. The ECJ took five months to deliberate on whether the Home Office was wrong to refuse Garcia Ormazábal's husband permanent residency in the UK.

Factual Background

  •  Mr Toufik Lounes, an Algerian national, entered the UK in 2010 on a six-month visitor visa and then overstayed illegally. Ms Perla Nerea Garcia Ormazábal, a Spanish national, moved to the UK as a student in 1996 and began working in the UK in 2004. She became naturalised as a British citizen giving her dual nationality in 2009.
  •  Following their marriage in April of 2014, Mr Lounes applied for a residence card as a family member of a European Economic Area (EEA) national.
  •  In May of 2014, Mr Lounes was served with notice to remove him from the UK, as he had breached immigration controls.His application for residence had also been refused. He was told that Ms Garcia Ormazábal was no longer regarded as an EEA national since she had become a British national and therefore was no longer entitled to rely on the rights of free movement under EU law.
  •  Mr Lounes brought a claim before the High court against the decision. Having concerns surrounding whether the issue was compatible with EU law, the High Court asked the ECJ to provide a ruling on the issue.
  •  Yves Bot, the advocate general said that "Under Article 21(1) [of the Treaty on the Functioning of the European Union (TFEU)] Member States must permit EU citizens who are not their nationals to move and reside within their territory with their spouse and, possibly, certain members of their family who are not EU citizens". He claimed that it would be "illogical and problematic" for the British Government to deny EU citizens' rights to which they were accustomed under the TFEU once they had obtained their British passports.

This opinion highlights how complex the rules are governing the rights of EU nationals and their families living in other member states. In terms of Brexit negotiations, it is yet to be seen whether the rights of free movement will be lost. This issue will ultimately depend on the terms of the agreement reached between the UK and the EU.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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