Employee awarded £47,000 in transgender discrimination case

The recent case of de Souza v Primark (2018) involved one of the highest reported awards for gender reassignment discrimination. We take a look at the Tribunal’s findings and the lessons employers can learn from Primark’s mistakes.

The case involved a shop assistant at a Primark store, Miss de Souza. When she applied for the role, Miss de Souza informed Primark that she was transgender and would prefer to be known as Alexandra, rather than by her birth name, Alexander. Primark agreed that she could choose the name she would like on her name badge, but said she would have to use her official name for pay.

However, in error both Miss de Souza’s “legal name” and “preferred name” were recorded as Alexander on Primark’s system. The system was used to generate core allocation sheets (which were given to supervisors to call a register at the start of shifts) and the name Alexander appeared as Miss de Souza’s name on those sheets.

There were various incidents during Miss de Souza’s employment, which led to her resigning and bringing claims against Primark for direct discrimination and harassment in relation to gender reassignment. For more information about gender reassignment, see our previous article here.

Miss de Souza gave evidence to the Tribunal that she was repeatedly called Alexander by her supervisor, and was subject to name calling and comments from colleagues. On one occasion a colleague sprayed men’s perfume over her till and she was subjected to comments that she had a “man’s voice” and a “deep voice”.

Miss de Souza made a formal complaint and a department manager (Mr Wyatt) investigated. Mr Wyatt spoke to Miss de Souza and to other witnesses, but the Tribunal found that his investigation was inadequate. Mr Wyatt decided that no further action would be taken, but this was not communicated to Miss de Souza.

There was another incident in which a colleague told an electrician who needed access to the female toilets that there were no ladies in there, even though Miss de Souza was in there. Again, Mr Wyatt investigated, and again his investigation was inadequate and concluded no further action would be taken. Miss de Souza was not informed of the outcome and was not given the opportunity to appeal (contrary to Primark’s grievance procedure and the ACAS Code of Practice on Disciplinary and Grievance Procedures).

Miss de Souza took time off work due to stress and when she returned she continued to be subjected to comments by colleagues. A few weeks later she resigned because of the harassment and Primark’s failure to do anything about it.

The Tribunal found that the actions of Miss de Souza’s supervisor, the perfume incident, comments about her having a “man’s voice”, and the toilet incident each amounted to harassment. The Tribunal held that Primark’s failure to investigate and handle the matter properly was direct gender reassignment discrimination. Although the Tribunal found that the new starter material and name badge being issued in the wrong name was not direct discrimination, it was critical of Primark’s failure to have a safe system in place to protect Miss de Souza’s identity, and commented:

“We find it shocking that the respondents could not devise a way of keeping the claimant’s legal name off the core allocation sheets and out of the knowledge of her supervisors. The respondents ought to have been able to devise a system whereby only one or two people in HR and payroll were aware of the claimant’s transgender status… The respondents showed a complete lack of understanding from the beginning as to what was required”.

Miss de Souza was awarded £47,433.03, which included loss of earnings, injury to feelings, and a 25% uplift for Primark’s failure to follow the ACAS Code of Practice.

In addition to awarding compensation, The Tribunal made recommendations for Primark, including that they should:

  • adopt a written policy regarding how to deal with staff who are transgender or who wish to undergo gender reassignment;
  • insert a reference to the existence of a policy of confidentiality in regard to transgender new starters into any materials used in training managers to recruit staff;
  • amend materials used for equality training to include references to transgender discrimination and the existence of the specific transgender policy; and
  • ensure that transgender discrimination and harassment is referred to in all their equality and harassment policies.

As this case shows, an employer’s failure to investigate and handle complaints properly can amount to discrimination, therefore for employers it is important to make sure that you have procedures in place to deal with grievances and that those who handle complaints are aware of the procedures.

Employers can also be held vicariously liable for discriminatory acts committed by their employees in the course of their employment, as Primark were in this case. However, there is a statutory defence available to an employer if it can show that it had taken all reasonable steps to prevent the discrimination. Therefore, making sure you have robust and up to date equal opportunities policies in place, and that staff are adequately trained on them, could make all the difference. We have experience of running equal opportunities training for employers – contact us if you would like to know more about what we can offer.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or enquiries@pureemploymentlaw.co.uk).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

To bump or not to bump?

Considering it is not particularly common to see it in practice, bumping is something that clients ask us about surprisingly often. It is a term that many employers and HR practitioners have heard of, and know they need to be wary about, but they tend to be unsure about what exactly they need to do. Fortunately, Mr Bump is here to shed some light on this tricky subject, and bring you up to date on the very latest case law!

What is bumping?

Bumping arises in a redundancy situation and is where one employee is ‘bumped’ out of the way and made redundant so that another ‘at risk’ employee can take their place.

For example, employee X’s role is at risk of redundancy and employee Y is in a lower level position. Bumping would arise if Y is made redundant so that X can take Y’s job. The reason for Y’s dismissal would be redundancy, despite the fact that Y’s role was not at risk.

As you can imagine, bumping is not particularly popular with people in Y’s position, and is highly likely to be challenged, which is one of the reasons why employers are often wary about using it! One of the times when it can sometimes crop up would be if Y has less than two years’ service.

The courts have even recognised that bumping can cause damage to employee relations, with the Court of Appeal commenting in 2012 that “”it is not compulsory for an employer to consider whether it should bump an employee… if an employer takes the route of bumping another employee, it can be very detrimental to employee relations. It is in essence a voluntary procedure.” (Samels v University of Creative Arts)

Over the years the case law on bumping has developed, and until recently the general position was that employers are required to give consideration to bumping in appropriate situations, but they are not obliged to ‘bump’.

What is the very latest case law?

The Employment Appeal Tribunal recently had to rule on bumping in the case of Mirab v Mentor Graphics UK (2018). In the case, the Employment Tribunal had concluded that the employee’s dismissal had been fair, and one of the reasons given for that conclusion was that the employer had not been obliged to consider bumping, because the employee had not asked them to.

The Employment Appeal Tribunal overruled the Employment Tribunal on this point, saying that there was no requirement for the employee to raise bumping in order for it to be a consideration. The test is whether the employer’s actions in the redundancy process are reasonable in the circumstances. Here, Mr Mirab had indicated during the consultation process that he may be prepared to take the lower position, but this was not explored further. The case was therefore sent back to the Employment Tribunal for them to reconsider this point.

It may be of course that the employer can show that even if they had considered bumping, it would not have been appropriate. However, that will be for the Tribunal to determine.

What does this mean for employers in practice?

What this case means is that employers cannot ignore the issue of bumping and think that it only needs to be considered if an employee asks about it. If you do that, you my end up with an experience nearly as painful as poor Mr Bump!

Bumping does need to be part of the overall assessment an employer makes when they are following a fair redundancy process, so even if you are dealing with what may seem to be a standalone redundancy, it does mean that you need to look at the wider picture across the organisation to think about whether there is any scope for bumping.

This case hasn’t changed the fact that bumping isn’t compulsory, and I still expect it will be relatively unusual. However, to protect against cases like this one it would be wise for employers to ensure that there is evidence (such as a paper trail) to show that consideration was given to bumping, what the outcome was and why.

We have years of experience of advising on all sorts of redundancy and restructure situations. If you have something you would like to talk through, why not give us a call.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or enquiries@pureemploymentlaw.co.uk).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

Dismissed for knowing a criminal

There are only a very small number of unfair dismissal cases which reach the Supreme Court, usually because the costs of pursuing them this far is completely disproportionate to the remedy if the claimant is to succeed. The recently reported case of Reilly v Sandwell Metropolitan Borough Council (2018) is one of those rare cases.

Ms Reilly was employed by the Council as the headteacher of a primary school. She had a close, but non-romantic, relationship with a man who had previously been convicted of making indecent images of children. She also owned a property jointly with him. Ms Reilly knew of his arrest and subsequent conviction, however, she did not disclose these facts to the Council.

The school where she worked became aware of her relationship with this man and of his conviction. Ms Reilly was challenged about this and did not deny it. She also said that there was nothing wrong in her having this person as a friend and that there was no obligation on her to tell the Council. The Council suspended her and subsequently dismissed her for failing to disclose these matters, and also for failing to acknowledge that she should have told them about her relationship and not accepting that it had been wrong of her not to do so.

The Claimant brought a claim of unfair dismissal, arguing she was under no duty to disclose the relationship. The Employment Tribunal rejected this and found the dismissal to be fair. Her appeals to the Employment Appeal Tribunal and the Court of Appeal failed, so she appealed to the Supreme Court.

The Supreme Court also rejected her appeal. They agreed with the lower courts that, given her position as a headteacher of a primary school, it was within the band of reasonable responses for the Council to dismiss in these circumstances. The important thing here was of course her role as a headteacher and the nature of the offence – it will be the exception when an employee having a friendship with a criminal will justify dismissal.

Interestingly, two of the Supreme Court judges did say that perhaps the existing case law on conduct dismissals (the lead case for which is BHS v Burchell (1978)) could be questioned – however, as the point was not argued by the parties in this case, that was not explored further. Some commentators have interpreted this as ‘laying down the gauntlet’ for the existing law to be challenged – but as so few unfair dismissal cases make it to the higher courts, we may have a very long time to wait before this point is considered again.

Cases like this do make you question the wisdom of pursuing claims this far. The maximum award for a claim of unfair dismissal is in the region of £95,000 (and, as the majority of that is capped at a year’s gross pay, for most people the maximum award is much lower), and therefore the costs of taking a case all the way to the Supreme Court are likely to be way in excess of the maximum value of the claim.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or enquiries@pureemploymentlaw.co.uk).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

National Minimum Wage headaches for employers

There were plenty of big names on the Government’s ‘name and shame’ list this month for those who had been paying their workers less than National Minimum Wage – and there were a range of reasons why. If even the biggest employers have fallen foul of the rules, it is easy to see how plenty of smaller organisations may also be unaware that they could be caught out. We look at some of the key points:

Uniform

TGI Friday, Wagamama and Karen Millen were three of the biggest organisations to breach the NMW in relation to staff uniform. Workers at the companies had been told what type of clothing or footwear they were expected to wear, and as such, under the rules the employers were effectively requiring the workers to pay for the uniform. For example, although Wagamama provided staff with T-shirts, they were required to be worn with a black skirt or trousers, and this caused a NMW underpayment, because staff should not have had to bear the cost of purchasing those items. TGI Friday expected staff to wear black shoes, and again staff should have been reimbursed. Karen Millen asked staff to wear the brand’s clothes, but did not reimburse them for the costs. All three companies have now updated their uniform policies.

Accommodation

Marriott Hotels was another organisation named and shamed this month, with a total underpayment of £71,723, much of which related to overnight accommodation for workers. Accommodation is a perennial cause of underpayment, particularly in the hospitality sector, because the NMW rules state that only a set ‘accommodation offset’ can be charged for each day when accommodation is provided. If a worker is charged more than the rules allow, then this may take them below the relevant NMW level. Gas and electricity and laundry charges are also counted for this purpose.

Additional work

Employers are still getting caught out for underpayments when they have asked staff to attend meetings or training in addition to their working hours, or if workers are required to arrive early for their shift. For example, in 2017 Argos was named and shamed for requiring workers to attend unpaid briefings and undergo security checks. When staff are being paid only a small amount above NMW, it is easy for these things to create an underpayment.

Recovering deductions

Arcadis, a large design and consultancy organisation, was named and shamed as a result of recovering training costs from two departing employees. The deductions took the workers below NMW. Although from the sounds of things the company had a signed agreement from the staff members entitling it to recover the monies under the terms of a training agreement, they were not entitled to take the employees’ pay below NMW.

Similarly, another area where Marriott got themselves into difficulty was where they deducted charges for late-night taxis from workers, which took them below NMW levels.

 

These cases illustrate that the National Minimum Wage rules can be trickier to apply than they seem, and there are plenty of traps for the unwary! We have helped a number of employers who have faced NMW investigations, but obviously it is better if you can avoid getting to that stage. If you think you may be affected by any of the issues highlighted here, do get in touch for details of how we can help.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or enquiries@pureemploymentlaw.co.uk).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

 

 

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