Tag Archives: the equality act

SEX (ism) in the City

It would appear that the City of London can still be a tough place for a woman, particularly a bright and highly successful one, as two recently reported tribunal claims show:-

http://www.standard.co.uk/news/london/city-broker-delighted-to-win-sexism-case-against-bunga-bunga-bank-8929266.html

http://www.standard.co.uk/news/london/trader-called-crazy-miss-cokehead-by-colleagues–is-vindicated-by-tribunal-8922128.html

Although the two cases were distinct, there are some interesting similarities in both cases.

  • Both were young women – 32 and 42 years old
  • Both were working for top City establishments  – Troika Group and Oppenheimer Europe
  • Both were high earners on six figures salaries
  • Both were clever and driven and highly successful, one a trader the other a broker
  • Both successfully sued for sex discrimination (including victimisation) and unfair dismissal
  • Both were subjected to insidious and casual sexism and derogatory personal comments including being called “miss cokehead” and “Bitch” in communications with clients and senior staff and references to the firm as “Bunga Bunga Securities”.
  • Both were treated less favourably than their male counterparts at work because of their sex
  • Both succeeded in their claims and are likely to receive substantial unlimited compensation
  • Both hired Lawyers to represent and advise them

Comment

Despite The Equality Act 2010 and the work of the Equality and Human Rights Commission, it appears Sex(ism) in the City still exists, although to what extent may always remain unclear given that the majority of tribunal claims settle before a hearing.

Employers

There are many steps employers can take to limit claims of Sex discrimination by employees:-

  1. Have an Equal Opportunities (EO) Policy which is actively followed and enforced by the company
  2. Provide regular  EO training for managers and staff
  3. Carry out workplace diversity monitoring
  4. Comply with the EOC Code of Practice on Sex Discrimination
  5. Deal with grievances on grounds of sex in accordance with the ACAS Code of Practice and fully investigate any allegations and consider suspension measures if applicable
  6. Respond promptly and sensitively to any submitted questions by an employee under the Equality Act 2010
  7. Take legal advice to protect and limit the legal and reputation risks to your company as soon as you can.

Employees

If you are an employee suffering discrimination because of your Sex, you should take the following steps:-

  1. Raise the issues with your line manager or Human Resources and seek to resolve matters informally with your employer if at all possible
  2. If this does not work consider the formal grievance route or consider submitting questions to the employer to help determine whether you have a claim under the Equality Act 2010 (previously known as the Questionnaire Procedure).
  3. Always keep a paper trail/ diary of events and keep copies of any relevant documents/emails/correspondence
  4. Consider issuing an Employment Tribunal Claim if you are unable to resolve your concerns with your employer first.
  5. Take legal advice from a solicitor specialising in employment law

Employee who prevented a definitive diagnosis of his alleged condition was not disabled

In Cox v Essex County Fire and Rescue Service UKEAT/0162/13 the EAT considered whether an employer had not known and could not have been expected to know that an employee was disabled.

The decision

The EAT has upheld a tribunal’s decision that, despite an employee advising that he was suffering from bipolar disorder, the absence of a definitive diagnosis meant that the employer did not know, and could not have reasonably been expected to know, that the employee was disabled.

The tribunal, as the arbiter of facts, had been entitled to find that the employer had asked the right questions and was justified in concluding that the employee was not disabled.

The tribunal took particular note of the fact that the employee had withdrawn consent for his GP and specialist to provide information to the employer’s occupational health service. The case is a reminder to employees of the potential consequences of failing to co-operate with their employer’s attempts to obtain medical advice on their position.

Comment

While it involved provisions of the DDA 1995, the EAT’s decision is relevant for claims proceedings under the EqA 2010 and the question of how much, or what, an employer needs to (actually or constructively) know in order for it to know that a person is disabled.

The EAT in both this case and in Wilcox stressed the fact-specific nature of the tribunals’ decisions. In each case the employee had failed to fully co-operate with the employer’s attempts to obtain medical advice on their condition.

In this case, the tribunal considered that the employee wished to establish a causal link between his workplace accident and bipolar disorder, presumably to maximise his claim for personal injury compensation, and that this appeared to have resulted in him withdrawing consent for the disclosure of relevant medical information.

However, the definition of a disabled person is one who has a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. A mental impairment no longer needs to be clinically well-recognised to render the sufferer disabled, as was originally the case under the DDA 1995.

Summary

Therefore, while an employee’s failure to co-operate in establishing a “definitive diagnosis” may mean that an employer lacks the requisite knowledge of disability, does it necessarily mean that it will do so?

The passages of the tribunal’s decision set out by the EAT suggest that it did not consider whether, despite the absence of a definitive diagnosis, there was nevertheless sufficient evidence before the employer at the relevant time from which it ought reasonably to have known that the employee met the statutory definition of being disabled by reason of a mental impairment.

Source: Cox v Essex County Fire and Rescue Service UKEAT/0162/13 courtesy of The Practical Law Company October 31 2013