Sexual harassment: shoulder massage anyone? (Raj v Capita Business Services Limited)
A female manager massaged the shoulders of a male colleague whilst he was sitting at his desk in an open-plan office.It did not amount to sexual harassment.
There was no evidence that the conduct was related to sex and, although the conduct was unwanted, it was a one off isolated incident which the tribunal held to be a misguided attempt at encouragement. It held that the shoulders were a “gender neutral” part of the body and not an area of particular intimacy or sexual sensitivity. The tribunal found that the contact may have been clumsy and ill-advised, but more evidence was needed that the conduct was related to sex.
The case demonstrates how it is not enough for an employee to show that the conduct complained of is unwanted and that it had the effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. The complainant must provide evidence that the conduct is related to sex for the burden of proof to then shift to the employer to prove that the conduct was not unlawful harassment.
Would the decision have been different if the situation had been reversed and it was a male manager who massaged a female employee’s shoulders? Who knows.
This is a case that went from the employment tribunal to the EAT and it would have cost the employer a lot of time and money to defend.
It is inadvisable for work colleagues to give each other impromptu massages in the workplace or during any work social events. There is a risk of expensive claims….even if the employer ends up ‘winning’.
Employers should ensure that they have clear rules in place as to what amounts to acceptable conduct in the workplace and that staff are aware of these rules. This might soon become a legal requirement. The Government’s consultation on new laws that would require employers to take steps to prevent harassment in the workplace ends this week.
https://www.gov.uk/government/consultations/consultation-on-sexual-harassment-in-the-workplace
Although the conduct did not amount to sexual harassment on the facts of this case, it highlights the need for employers to have a clear policy and training for employees and managers setting out what is and is not acceptable conduct in the workplace.
Vegetarianism is not a philosophical belief…but is there still hope for vegans? (Conisbee v Crossley Farms Limited)
A former waiter claimed he was ridiculed at work for not eating meat. He argued that his “genuine belief” in his vegetarianism amounted to a protected characteristic and claimed discrimination on the grounds of religion and belief.
An employment tribunal decided that vegetarianism is not a philosophical belief that is capable of protection under the Equality Act 2010. The tribunal held it did not meet the necessary criteria because, amongst other things, it did not have “similar status or cogency to religious beliefs”. The holding of a belief relating to an important aspect of human life or behaviour was “not enough in itself” The tribunal’s view was that it was a lifestyle choice.
But, but, but…the ruling gives some hope to vegans who are campaigning to have veganism viewed as a protected characteristic in employment law. The judge said there was a “clear cogency and cohesion in vegan belief” that vegetarianism lacked .
Threatened for refusing to work without rest breaks (Pazur v Lexington Catering Services Ltd)
The Employment Rights Act protects employees from being subjected to detriment because of a refusal to comply with a requirement that contravenes the Working Time Regulations 1998.
In this case the EAT held that it was an unlawful detriment for an employer to threaten a worker with dismissal for refusing to work at a client’s premises because on a previous occasion the client had not allowed him to take a rest break during an eight-hour shift, as required by the Working Time Regulations. It found that the employer’s threat of dismissal was materially influenced by the refusal and that the employee’s refusal had to be interpreted as a refusal to comply with a requirement that breached the Working Time Regulations.
‘Reasonable belief in public interest’ test for whistleblowing cases ( Okwu v Rise Community Action)
The correct test for determining whether a worker has made a protected disclosure is to ask whether the worker reasonably believed the disclosure to be in the public interest.
In this case Ms Okwu raised data protection concerns in defence of poor performance issues (lack of secure file storage and the fact that she shared a mobile phone for dealing with clients who were victims of domestic abuse).
The EAT held that it was not necessary for the public interest in the data protection concerns to have been the sole motivation for raising these issues. Ms Okwu had a reasonable belief that these issues were in the public interest and that was enough for her to be protected under the Public Interest Disclosure Act
Holiday pay for permanent part year workers (The Harpur Trust v Brazel)
Permanent workers on a part-year contract, for example term-time only, should not have their 5.6 weeks’ statutory holiday entitlement under the Working Time Regulations pro-rated to reflect the fact that they do not work for the full year.
Legislation requires a worker’s holiday pay to be calculated as a week’s pay for each week of leave and, if a worker does not have normal working hours, a week’s pay is taken to be the worker’s average weekly pay in the 12 weeks before the calculation date (which is the first day of the relevant period of leave excluding any weeks in which no remuneration was payable).
The Claimant in this case was a visiting music teacher employed by the trust on a zero-hours contract. She argued that she lost out after the school changed the way it paid visiting music teachers by calculating her earnings at the end of each term. The payment system was in accordance with a method for calculating casual workers’ holiday pay which was recommended by Acas. She argued that the method did not comply with the calculation required by the working time regulations and produced a lower figure. She believed that holiday pay should be calculated by taking the average weekly remuneration for the 12 weeks prior to the calculation date and multiplying it by 5.6 weeks
As the claimant worked around 32 hours per week, using this calculation brought her holiday pay to around 17.5% of annual pay, compared with 12.07% of annual pay for staff working the whole year.
A Judge in the Court of Appeal said this: “it may at first sight seem surprising that the holiday pay to which part-year workers are entitled represents a higher proportion of their annual earnings than in the case of full-year workers, but I am not persuaded that it is unprincipled or obviously unfair“
Guidance for Sponsors – evidence of date of entry
Updated Home Office requirements for Sponsors now means that employers must keep evidence of a migrant’s date of entry to the UK. This can be an entry stamp from an immigration officer on the migrant’s passport/visa or travel tickets or a boarding pass.
