UK: Employment Legal Update December 2019

Last Updated: 13 January 2020
Article by Hewitsons LLP

In this issue...

  • Direct discrimination – is a comparator required where a claim is based on failure to pay allowance during maternity leave?
  • Temporary staff agency found to have indirectly discriminated against Sikh work-seeker
  • The ICO launches new data protection guidance
  • Queens Speech 2019: Employment & Immigration implications

Direct discrimination – is a comparator required where a claim is based on failure to pay allowance during maternity leave?

In The Commissioner of the City of London Police v Geldart UKEAT/0032/19, the Employment Appeal Tribunal (EAT) considered whether the non-payment of a police officer's London allowance during maternity leave amounted to direct sex discrimination.

Mrs Geldart worked as a police officer in the City of London police force. After giving birth and in accordance with the force's maternity leave policy, Mrs Geldart took maternity leave during which period she received full pay for 13 weeks, half pay for ten weeks and statutory maternity pay for the remaining balance of the leave. Under the Police Regulations, special regulations applicable to police officers and used as a recruitment incentive, Mrs Geldart was entitled to a London allowance. This allowance was paid at the same rates during Mrs Geldart's maternity leave, namely the full allowance for 13 weeks, half the allowance for ten weeks and then no allowance for the remaining balance of her leave when Mrs Geldart was no longer entitled to maternity pay.

Bringing a claim in the Employment Tribunal (ET), Mrs Geldart argued that failure to pay the London allowance in full during her maternity leave meant that she had suffered a detriment and that it was direct sex discrimination.

Upholding Mrs Geldart's claim, the ET found that in accordance with the Police Regulations Mrs Geldart was entitled to be paid the London allowance in full throughout her maternity leave. As the reason for the refusal to pay the allowance was held to be due to Mrs Geldart being on maternity leave, it was direct sex discrimination and Mrs Geldart was awarded the underpaid allowance plus £4k compensation for injury to feelings.

The force appealed to the EAT arguing that Mrs Geldart was not entitled to receive the allowance at all during maternity leave as well as that she was required to show that a man in comparable circumstances would have been treated more favourably.

Dismissing the appeal, the EAT held that the Police Regulations stated, "a member of the City of London...police force shall be paid a London allowance". Given that Mrs Geldart remained a member of the City of London police force during her maternity leave, and there was no provision within the regulations to the contrary, she was clearly entitled to the allowance. Further, the EAT held that as Mrs Geldart had been treated unfavourably due to the fact that she was on maternity leave, the ET had been correct to conclude that Mrs Geldart's claim should succeed without reliance upon a comparator (i.e. that a man would have bene treated differently).

Temporary staff agency found to have indirectly discriminated against Sikh work-seeker

In Sethi v Elements Personnel Services Ltd the ET considered if a temporary work agency had indirectly discriminated a practicing Sikh by adopting a blanket "no beards" policy.

Mr Sethi was a practicing Sikh and adhered strictly to Kesh, a practice which requires the person not to cut any body hair. Mr Sethi sought work with an agency that worked predominantly with five-star hotels (predominantly front of house, food and beverage roles) and had a "no beards" policy. The policy was concerned with appearance, not hygiene, and had purportedly been implemented in response to demands from the agency's clients.

In return for advising the agency that he would be unable to cut his beard, Mr Sethi was told that five-star service required all staff to be clean-shaven and that facial hair was not allowed for health and safety/hygiene reasons. Mr Sethi brought a claim against the agency, alleging that the "no beards" policy amounted to indirect religious discrimination.

Succeeding with his claim, the ET held that the work agency's "no beards" policy was a provision, criterion or practice which placed Sikhs generally, and Mr Sethi in particular, at a particular disadvantage because of the Sikh practice of Kesh. The ET accepted that it was a legitimate aim for the agency to seek to comply with client requirements but considered that the blanket "no beards" policy was not justified as a proportionate means of achieving that aim. There was no evidence that the agency had considered any alternatives, such as asking their clients if they would accept a Sikh working for them who could not shave for religious reasons. The legitimate aim of meeting client requirements could have been met by accepting Sikhs, such as Mr Sethi, on to the agency's books and then addressing a client's requirements on a case-by-case basis (seeking an exception for Sikhs who were unable to shave), rather than adopting a blanket "no beards" policy.

To see the full article click here

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions