Employment Law News Updates

EMPLOYMENT NEWS UPDATES

A Pale, Stale, Male in the Workplace

Over the last decade, we have seen an increasing propensity to condemn organisations for having predominantly ‘pale, stale, males’ in positions of seniority. This has partially been driven by the extension of Gender Pay Gap Reporting which has forced many organisations to record and reflect on inequality in the workplace and, hopefully, take steps to rectify this.

As an employment lawyer, I find myself bringing and advising on claims regarding sex, race and age discrimination quite often. However, these normally involve employees who are either young, disabled, female or from a BAME background.

Unusually, in the case of JWT Bayfield v Wunderman Thompson (UK) Ltd, the tribunal upheld claims of sex discrimination, harassment, victimisation and unfair dismissal from two claimants who were heterosexual, middle-aged men who described their ethnic origins as White British. The holy grail or trifecta if you will.

I think it is fair to say that most solicitors or members of the public would not typically regard individuals with these characteristics to be the subject of discrimination in the workplace.

In this case, the issues stemmed from a presentation made by the ad agency’s creative director, which was designed to be a strong response to gender-pay-gap figures and present a positive vision of diversity in the agency. However, a controversial slide, with commentary to the effect of “One thing we all agree on is that the reputation JWR once earnt: as being full of “White, British, Privileged… has to be obliterated”, received numerous complaints from various members of staff who were, understandably, worried about the words used and the implications on their future with the agency.

This concern turned out to be warranted as, shortly after the presentation, the agency commenced a redundancy procedure and two creative directors, who complained about the presentation, were made redundant. It also transpired that before the claimants’ selection for redundancy, the executive creative director had saved a senior female creative from redundancy for various reasons, including her sex. It was therefore no surprise that the tribunal held that the ad agency’s decision was fuelled by the claimants’ sex and the agency’s desire to improve its gender pay gap report.

Whilst the agency’s motivation in this case was unusually explicit, this judgment confirms that organisations cannot strive for equality in the workplace at the expense of heterosexual, non-disabled, non-religious, males.

The question then turns to how? How will organisations implement change and improve equality without inadvertently, or in this case overtly, placing one group at a disadvantage.

Whilst this is not the first case of this kind, it is clear that the need to improve equality, gender pay gap reporting and ethnicity pay reporting means it will not be the last. Growing societal pressure and the drive for change means we are seeing more and more organisations only recruiting and promoting women and ethnic minorities in a bid to meet clients’ demands, avoid public scrutiny and hopefully, most importantly, improve equality in the workplace.

This has been confirmed by recruiters who are being explicitly informed by employers that the successful candidate “needs to be female”.

Both the Bayfield case and the stories we are hearing from recruiters are examples of “positive discrimination” which is unlawful in the UK. Something called “positive action” can be lawful, but only when choosing between two otherwise identical candidates – something that is both rare and difficult to prove.

In summary, employers are expected to improve the diversity in their workplace but not to the extent that it amounts to discrimination against others; a difficult balance.

Upcoming Changes

Carer’s Leave
The Government has responded to the consultation Carer’s leave and confirmed that it will introduce a new leave entitlement for unpaid carers. The leave will be a day one right for employees with eligible carer relationships. This change will be introduced “when parliamentary time allows”.

Asking for salary information
21 US states have made it illegal for employers to ask candidates about their pay history, on the grounds that this perpetuates historical gender imbalances. To coincide with the UK’s Equal Pay Day 2021, the Fawcett Society has proposed that a similar law be implemented in the UK.

Making Flexible Working The Default

Current Position

Currently, employees with 26 weeks’ continuous service have the right to make a statutory flexible working request.

On receipt of a flexible working request, employers are advised to meet with the employee to discuss their request. The employer then has three months to inform the employee of their decision unless a longer period is agreed.

Employers may only reject a request if:
1. the employee is ineligible, if for instance the individual has already made a statutory request within the last 12 months or does not have the requisite service; or

2. one, or more, of the eight prescribed business reasons apply. This may be more difficult to contend as many employers have addressed issues previously considered to be a bar to flexible working.

Proposed Reform

The Government’s 2019 manifesto committed to encouraging flexible working and consulting on making it the default.

Instead, the consultation sets out five proposals for reshaping the existing regulatory framework in the hope that it better supports the objective of making flexible working the default. The proposal considers:

1. making the Right to Request Flexible Working a day-one right;
2. whether the eight business reasons for refusing a Request all remain valid;
3. requiring the employer to suggest alternatives;
4. the administrative process underpinning the Right to Request Flexible Working; and
5. requesting a temporary arrangement.

What does this mean for employers?

Although the consultation title suggests a radical change to the current flexible working framework, this is clearly not the case. A more appropriate title for the consultation would have been “making the right to request flexible working the default” .

The contents of this email are intended for general information only and do not constitute legal advice. Wallace LLP cannot accept responsibility for any loss arising from the use of the content in this email. This information was prepared on 26 November 2021.