Employment Law September 2021 Update

The cost of refusing to allow an employee to leave work before 6pm to pick up daughter from nursery

A claim by an estate agent has hit the headlines after she was awarded £185,000 after her boss refused to let her leave work early to collect her daughter from nursery.

Alice Thompson had asked to work four days a week and to finish at 5pm.  The employer said that they could not allow her to work part time and refused to consider any other alternatives. Ms Thompson had to resign and claimed indirect sex discrimination.

Ms. Thompson was on a high salary (including commission and bonus) hence the high award but only received £13,500 for injury to feelings.  A link to the remedy judgment can be found here

 https://assets.publishing.service.gov.uk/media/61323241e90e070442fbdd27/Ms_A_Thompson__vs_Scancrown_Ltd_-_Trading_as_Manors.pdf

This whole case is a warning to any employer to make sure it properly considers flexible working applications.

Could an employer say that an actor not looking visibly pregnant was a genuine occupational requirement?

An actor was due to reprise her role in the fourth series of Strike but when she appeared visibly pregnant, her role was recast.

Ms Kinlay brought a claim for pregnancy and maternity discrimination and argued this could not be a genuine occupational requirement.  Her claim was upheld as the tribunal said that her pregnancy could have been concealed through camera angles, props and costumes.

This case is a reminder that if an employer is trying to rely on an occupational requirement, it must be able to show that this is a proportionate means of achieving a legitimate aim.  It must consider all alternative options and the burden will be on the employer.

Do employees have a right to self-isolate if they have been fully vaccinated?

It will be interesting now that the majority of the population is vaccinated whether there will be any employees who believe they should still be allowed to self isolate.

If an employee is not required by law to self-isolate, then there is no right for an employee to simply choose to do so.  There will not be any right to statutory sick pay.

This could leave employers with a host of problems – employees who are forced to come to work may resign and claim constructive unfair dismissal, dismissals could be unfair unless an employer can demonstrate they tried to consider alternatives and to consult with the employee.

There may also be a risk of a claim of risk to health and safety and these types of claims do not need two years’ service.

Menopause claims

 The Guardian newspaper recently carried out a survey and this showed that there has been an increase in claims linked to menopause.  There were six cases in 2019; this has now increased to 27.

Whilst the numbers are low, they form the basis of discrimination claims on the basis of sex. Whilst the claims have not been successful, it shows a trend towards women not feeling afraid to bring claims of this nature.

This area of the law is bound to develop over the next few years.

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