Staff can be an integral part of a business’s branding strategy. The workforce is a part of the business which is likely to be visible to the outside world and can reinforce the image which a business is aiming to create. However, recent cases show that an employer’s desire to maintain and control its brand through its staff can bring it into conflict with its legal obligations.
Miriam O’Reilly’s Employment Tribunal claim against the BBC was covered extensively in the news after the BBC dismissed the 51 year old presenter of the programme Countryfile in an attempt to give the show a facelift and attract younger viewers. Her removal from the show was held by a Tribunal to be discriminatory on the grounds of age. However, the Tribunal recognised that the aim of appealing to younger viewers was legitimate, but removing her from the show was not a proportionate means of achieving that aim. So how far can an employer go in creating a brand without leaving itself open to claims of discrimination?
This point was discussed in the case of Lisboa v Realpubs Limited and others. Realpubs was in the business of taking over failing pubs and reinventing them as gastropubs. The Coleherne pub in West London was well known for its gay clientele. Realpubs took over the pub and employed Mr Lisboa, a gay man, to manage the pub under its new guise, The Pembroke Arms. Realpubs wanted to make the pub attractive to everybody and move away from its existing reputation and, in doing so, Mr Lisboa was pressured into adopting measures to make the pub less attractive to the gay community. Mr Lisboa was instructed to put a board outside the pub stating “this is not a gay pub”, and staff were encouraged to sit gay customers away from the window so they were less visible to passersby. Also, the staff had been predominantly male beforehand and Realpubs took measures to ensure that the gender mix of the staff became evenly balanced. It was also found that an email exchange had taken place between one of the company directors and a stakeholder which stated that “we are no longer a gay pub” and “we are barring ‘over the top’ old customers”. A couple of months after he started working for Realpubs, Mr Lisboa resigned and claimed, amongst other things, discrimination on the grounds of sexual orientation.
The Employment Appeal Tribunal agreed that Realpubs’ action amounted to discrimination on the grounds of sexual orientation. Even though Realpubs’ decision to move away from attracting a gay clientele was a lawful activity, the policy had been implemented in such a way that gay customers were undoubtedly treated less favourably than non-gay customers. So even if Mr Lisboa himself had not been gay, his claim is likely to have still been successful as it was the effect of Realpubs’ policies on the gay community.
There are some actions of Realpubs that were clearly discriminatory, for example instructing Mr Lisboa to put the sign outside the pub which makes it clear that gay people are not particularly welcome. But what about those more subtle actions such as manipulating the gender mix of the workforce to attract to a certain market? Could these alone have amounted to discrimination? And if the BBC could demonstrate that viewing figures declined when older female presenters are used, would that justify using men or younger women instead? These cases will make employers tread much more carefully.
The Lisboa case shows that the courts recognise that targeting your business and creating a brand is a lawful activity. But, if such actions have the unlawful effect of marginalising certain groups of people, the Tribunals are willing to deem such behaviour as being discriminatory. Businesses should consider the effect of any such branding and do what it can to ensure that certain groups will not be disadvantaged as a result.
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 [email protected])