Topic: Discrimination and harassment

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Singapore to enshrine workplace anti-discrimination laws

On 29 August 2021, Singapore Prime Minister Lee Hsien Loong announced that the Government will enact new laws to formally enshrine the Tripartite Guidelines on Fair Employment Practices (“TAFEP Guidelines”) into statute.1

There are, at present, no specific laws in Singapore which directly regulate workplace discrimination. Employers are, however, expected to abide by the principles of fair employment and adopt the recommended good practices set out in the TAFEP Guidelines.2 These guidelines are promoted and maintained by the Tripartite Alliance for Fair and Progressive Employment Practices (TAFEP), which is an independent body established by … Continue Reading

Speculation in Human Rights Claims – A Recent Decision

One of the challenging circumstances often facing an employer is having to make a tough decision (e.g. termination) with respect to an employee who is known to have a protected characteristic under human rights law. Whether the employee is elderly, has a disability, is gay, or has another protected characteristic, the concern is that the employee will allege that the decision was discriminatory. Even if the employer is comfortable that the protected ground was not a factor in the adverse decision, the threat or commencement of a complaint will add costs, time and stress.

Thankfully, the BC Human Rights Tribunal … Continue Reading

Government introduces legislative changes following the Respect@Work report

On 24 June 2021, the Federal Government introduced the Sex Discrimination and Fair Work (Respect at Work) Amendments Bill 2021 (Cth) (Bill) into the Senate.  The Bill amends both the Sex Discrimination Act 1984 (Cth) (SDA) and the Fair Work Act 2009 (Cth) (FWA) in response to the Respect@Work report (the Report) and implements many of the recommendations of the Report.  The Bill aims to “strengthen, simplify and streamline the legislative and regulatory frameworks that protect workers from sexual harassment and other forms of sex discrimination in the workplace.”

The Bill … Continue Reading

AHRC Report: ASX200 companies and sexual harassment

On 17 June 2021, the Australian Human Rights Commission (AHRC) released the “Equality across the board: Investing in workplaces that work for everyone (2021)” report (AHRC Report).  The report collates survey and interview data from 118 ASX200 listed companies to portray how these companies are currently combatting the issue of sexual harassment and makes recommendations based on these findings.  The AHRC Report builds on the findings and recommendations set out in the Respect@Work report, which discusses the benefits of data collection and transparency around workplace sexual harassment.

The AHRC Report focusses on eight … Continue Reading

“Stale” and “ineffective” training is insufficient to establish the reasonable steps defence

A recent decision of the Employment Appeal Tribunal (EAT) in Allay (UK) Limited v Mr S Gehlen provides useful guidance to employers seeking to rely on the “reasonable steps” defence to a claim of discrimination, harassment or victimisation.

An employer can be liable for acts of discrimination, harassment and victimisation carried out by its employees in the course of employment, even if the employer was not aware of those acts (section 109(1) of the Equality Act 2010). However, there is a potential defence available to an employer under section 109(4) of the Equality Act 2010 if it can show that … Continue Reading

Ethical Veganism is a Protected Characteristic

An employment tribunal in the UK has held that ethical veganism is a protected characteristic under UK discrimination law.

In the UK an employee is protected from discrimination in the workplace under one of the nine protected characteristics set out in the Equality Act 2010.  This includes protection in respect of religion, religious belief and philosophical belief.

The case involves an employee at the League Against Cruel Sports (LACS). He raised concerns that the organisations pension fund invested in some companies that tested products on animals or otherwise infringed the central tenets of his ethical veganism.  The disclosure was made … Continue Reading

Gender pay gap: a new measuring tool

Since 1972, there have been numerous laws on professional equality between men and women but the gender pay gap remains a crucial issue which has not been resolved yet.

The parliament voted a new law on 5th September 2018 creating an index to be used to measure the gender pay gap in companies.

Since 1st January 2019, there has been an obligation to assess the gender pay gap in each company with at least 50 employees through the use of the index. The methodology adopted is to allocate a certain number of points based on the following criteria:

  • Comparison of
Continue Reading

France: Le harcèlement sexuel susceptible d’être exclu en cas d’attitude ambigüe de la victime

Le harcèlement sexuel est défini, dans le Code du travail, par « des propos ou comportements à connotation sexuelle répétés qui soit portent atteinte à [la] dignité [du salarié] en raison de leur caractère dégradant ou humiliant, soit créent à son encontre une situation intimidante, hostile ou offensante ».

Le Code du travail prévoit également une assimilation aux faits constitutifs de harcèlement pour « toute forme de pression grave, même non répétée, exercée dans le but réel ou apparent d’obtenir un acte de nature sexuelle, que celui-ci soit recherché au profit de l’auteur des faits ou au profit d’un Continue Reading

France: Provocative acts do not necessarily fall within the scope of sexual harassment if the victim’s behaviour is ambiguous

The French employment Code defines sexual harassment as “repeated sexual comments or conduct that either violate the [employee’s] dignity because of their degrading or humiliating nature or create an intimidating, hostile or offensive situation against the employee“.

The French employment Code also assimilates to sexual harassment “any form of serious pressure, even non-repeated, exercised for the real or apparent purpose of obtaining an act of a sexual nature, whether it is sought for the benefit of the perpetrator or for the benefit of a third party“.

However, on 25 September 2019, the French Supreme Court (Cour … Continue Reading

Right to work in the UK and requests for evidence

A recent UK case considered whether an employer acted reasonably in requiring an employee, who was not a national of the European Economic Area (EEA), married to an EEA national, to produce documentation to show his right to work in the UK.

In the UK:

1) it is illegal to for an employer in the UK to employ somebody who does not have a right to work in the UK;

2) an employer can avoid liability for a civil penalty for breach of the above obligation if it carries out the requisite right to work checks before an employee’s employment … Continue Reading

Employee dismissed following long term absence due to mental illness: Federal Court finds it lawful

In an important decision last month, the Full Court of the Federal Court of Australia upheld the appeal of an employer who claimed, in dismissing a client executive who had been absent from work for 7 months due to mental health issues, it had acted lawfully and not dismissed him because of his illness.[1]

The judge at first instance had found the employer liable for breaching the ‘adverse action’ provisions of the Fair Work Act 2009 (Cth) (FW Act) because the employee’s mental illness could not be disaggregated from the employer’s reasons for dismissal.[2] This decision … Continue Reading

Facilitating HR Management: Electronic medical certificates

As part of the “Third Bureaucracy Relief Act” the German government intends to introduce an electronic submission procedure for medical certificates regarding the incapacity of employees. More than 80 million of such certificates are issued every year by doctors in Germany. Replacing extensive documentation and record-keeping duties will allow medium-sized companies in particular to reduce existing manual processing workloads.

According to current German law an employee must submit a medical certificate of incapacity to the employer at the latest by the fourth day of absence due to illness. In the future, employers will be able to retrieve electronic certificates directly … Continue Reading

Good Work Plan: Government issues further response and consultation to support families and pregnant women

As part of its Good Work Plan, the UK Government has recently published a response and a consultation paper on proposals which will protect and support families and pregnant women. The first Government paper considers extending redundancy protection for women and new parents.  The second consultation looks at various proposals to support families, including a review of the various parental leaves and pay entitlements, neo-natal leave and pay and providing transparency of employer’s work-life balance policies.

Good Work Plan: Pregnancy and Maternity Discrimination Consultation

As part of the Good Work Plan, the Government has considered changes to assist pregnant women … Continue Reading

Crouch, bind, set: Folau to tackle Rugby Australia in the Federal Court

The termination of Israel Folau’s $4m playing contract has set the scrum for a Federal Court case which is likely to shape the landscape of religious expression and vilification in the employment context.

Background

Folau’s controversial “warning” on Instagram stated that “Hell awaits” those who are “homosexuals … thieves and atheists”, among others, telling them they should ”Repent!” because “only Jesus saves”.

Along with NSW Rugby, Rugby Australia’s (together, Rugby Bodies) initial decision to sack Folau because of a high level breach of the Professional Players Code of Conduct was upheld by a Code of Conduct hearing.  The parties … Continue Reading

Court holds that it’s not discriminatory to enhance pay during maternity leave, but to pay only statutory shared parental pay during shared parental leave.

In the UK, only female employees are eligible for statutory maternity leave. They are also eligible for statutory maternity pay at a fixed rate during such leave subject to certain conditions – and it is common for employers to pay enhanced maternity pay during periods of maternity leave.

Whilst many employers do not pay enhanced paternity pay to those on paternity leave, it has long been accepted that paying enhanced maternity pay is defensible under the provisions of the Equality Act which state that, when determining whether a man has been discriminated against on grounds of his gender, no account … Continue Reading

Ethnicity pay gap reporting in the UK

As reported in an earlier post, the UK Government introduced mandatory gender pay gap reporting in 2017.

An independent review conducted in 2017, Race in the workplace, made a number of recommendations for removing the barriers to workplace progression faced by ethnic minorities including the introduction of mandatory reporting of ethnicity pay data. At that time the UK Government expressed a preference for a voluntary approach to ethnicity pay reporting.

However, following a later report revealing that very few employers collect ethnicity pay data, the Government has decided that mandatory ethnicity pay reporting is necessary to enable employers to … Continue Reading

French employment law : Key developments expected for 2019

The French authorities have been very prolific in the area of effecting reforms to employment law, and 2019 will not be an exception to this general rule (although perhaps less so than was the case in 2017 and 2018).

First, in 2019, a certain number of reforms promulgated in 2017 and 2018 will either come into force become fully effective:

  • As of January 2019, all companies have become subject to the requirement to withhold income tax from salaries paid to their employees. This change had been under discussion for a fairly long time and was initially planned to enter into
Continue Reading

Religious discrimination claim – whose religion?

The Employment Appeal Tribunal (EAT) has held that where an employer (or individuals on behalf of the employer) acts because of their own religion or belief, this may not lead to an employee bringing a successful claim for direct discrimination on grounds of religion or belief. The EAT upheld the employer’s appeal, overturning the Employment Tribunal decision.

The case involved a teacher at a nursery run in accordance with ultra-orthodox Jewish principles, who was dismissed after complaints made by parents who were aware that she was cohabiting with her partner. At a meeting, the headteacher and the nursery’s managing director … Continue Reading

Claim by track cyclist Jess Varnish to be heard in the employment tribunal next week

Track cyclist Jess Varnish brought a claim of sex discrimination against British Cycling and UK Sport last year, following her removal from the Great Britain Olympic team just months before the 2016 Rio Games.

In the UK, protection from discrimination in the workplace is governed by the Equality Act 2010 (the Act). However, in order to be able to bring a claim, an individual must fall within the categories of protected persons under the Act.

Who is protected?

The first category of those protected under the Act are those in “employment” which has a wider meaning for the purposes of … Continue Reading

Employees on Long term sickness – when can an employer dismiss?

The Employment Appeal Tribunal (EAT) has recently confirmed that employers should take care when dismissing an employee who is entitled to participate in a permanent health insurance (PHI) scheme and is absent from work by reason of long term ill health. It held that there is an implied term that an employer will not dismiss an employee for incapacity if that would prevent the employee being entitled to long term disability benefits.

Where an employee is absent due to ill health then on termination of employment, the employer may face a claim for unfair dismissal and for disability discrimination.   Capability … Continue Reading

Have your say on Sexual Harassment in the Workplace

The recent Australian Human Rights Commission (AHRC) national survey on sexual harassment has made it clear that sexual harassment in the Australian workplace is increasing.   In June 2018, the AHRC announced a National Inquiry into Sexual Harassment in the Workplace in order to report, on other things, the prevalence and reporting of harassment and the measures being taken in preventing and responding to allegations of harassment.

The AHRC has invited submissions from interested parties to assist the inquiry.  We are preparing a submission based on our experience of assisting employers in preventing and managing sexual harassment in the workplace.  We … Continue Reading

Direct Discrimination – how far can this go?

The recent case of Lee v Ashers Baking Company Limited and Others has hit the headlines in looking at what amounts to direct discrimination in terms of the provision of services to individuals.  What effect does this case have on discrimination in the employment field?

The case involved a family owned bakery, whose owners strict religious beliefs include opposition to gay marriage. They were asked to provide a customised cake with a photograph and wording stating “Support Gay Marriage”.  They cancelled the order due to their religious belief and provided a refund to the customer.

The individual brought a discrimination … Continue Reading

Dismissal for misconduct cannot be based (solely) on anonymous reports

Anonymous reports have been mistrusted for a number of years in France, for historical reasons. While anonymity enables individuals to raise their voice more openly, without being the targets of retaliation measures, it can also drift into slander.

This explains a specificity of French law under which whistleblowers using ethicals lines are strongly encouraged to disclose their identity since generally speaking, , anonymous reports are not acceptable (although a limited number of exceptions are available).

It is only very recently that the French Supreme Court had to resolve a case involving an employee dismissed on the basis of anonymous reports.… Continue Reading

AHRC launches national inquiry into sexual harassment in Australia

The Australian Human Rights Commission (Commission) has recently launched an inquiry into sexual harassment in Australian workplaces (Inquiry). It seems that the ‘watershed’ moment that the #MeToo campaign was hailed as, has indeed driven the momentum to keep the issue alive and for meaningful action to come from it.

There can be little argument that a culture that tolerates, condones or rewards inappropriate conduct or the wrong behaviours creates real and significant risk for an organisation – from a legal, commercial and reputational perspective.   It is essential, both at Board and executive level, that there is an awareness and understanding … Continue Reading

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