1. Tackling Discrimination service –road show – women’s rights in the workplace

2. Discrimination Race Sex Religion or belief Sexual Orientation
Gender Reassignment
Age
Disability
Marriage and civil partnership
Pregnancy and Maternity
There are a number protected characteristics – one of which is sex/ gender

3. What is Discrimination?
Some examples
Direct Discrimination
Treating someone less favourably than others because of protected characteristic
Not being considered for a promotion
Where a worker is treated less favourably because they are not considered for an opportunity but a male colleague is

4. Indirect Discrimination
Policy or practice
Puts certain persons at a particular disadvantage because of protected characteristic
Proportionate means of achieving a legitimate aim
London Underground v Edwards
Slightly more subtle form of discrimination – Miss Edwards had been employed with London Underground for almost 20 years. There was a company reorganisation in 1992 which meant that there was a new rostering system. The rostering system involved working anti-social hours and working on the weekend. Ms Edwards argued that a considerably smaller portion of female workers could manage the rota in comparison with male workers because in general there were a higher number of female single parents than male single parents – the London Underground argued that the proportion of female workers that could not comply 95.2% (20 out of 21) was not considerably smaller than the proportion of men that could comply (all 2023). The EAT concluded that The IT was entitled to take into account all those matters and the possibility that some kind of assumption may exist that a particular type of work is "mens work" and not "womens work" and to consider whether the number of women drivers was so small as to be statistically unreliable.
In assessing proportionate impact on such a small pool of women, the IT could take account of a wider view to include statistical evidence that women are more likely to have primary child care responsibility than men.
The discrimination was not justified. London Underground should have accommodated Mrs Edwards' personal requirements, she had been working for them for nearly 10 years and her family demands were of a temporary nature.

5. Sexual Harassment
Unwanted conduct of a sexual nature
Purpose or effect violating your dignity and of creating an intimidating, hostile, degrading, humiliating or offensive environment

6. because of your rejection of or submission to the conduct,
Unwanted conduct of sexual nature or that is related to gender reassignment or sex
Conduct has the purpose or effect violating your dignity and of creating an intimidating, hostile, degrading, humiliating or offensive environment
because of your rejection of or submission to the conduct,
treated less favourably than if you had not rejected or submitted to the conduct.
Example where your boss makes advances towards a female worker at an office party and because she has rejected those advances, he decides to bully her at work by giving her more work to do or by refusing her requests for leave.

7. 3rd Party Harassment
3rd part harassment – where an employer is liable for acts of harassment by 3rd parties against an employee
Abolished October 2013
Agency argument – Kemeh v MOD
Possible solutions. Bring a normal harassment claim that the failure to act by employer is harassment related to the protected characteristic; bring a claim of indirect discrimination that in failing to act the employer is applying a provision criterion or practice that would put certain employees with particular protected characteristic at a disadvantage (if the employee has complained of sexual or racial harassment – their sex or race); bring a claim against the harasser under Protection from Harassment Act 1997 or make a complaint to the police
Agency argument – in many sectors workers are contracted out by employment agencies to work for third parties e.g. Cleaning, telesales – what happens when a contract worker harasses an employee of that third party company – is the third party company liable for the contract worker’s actions – Mr Kemeh was a cook in the MOD – he was black Ghanian – he was racially abused by a butcher who was contracted to work for the MOD by Sodexo – Mr Kemeh brought a claim of racial harassment against the MOD arguing the the MOD was liable for Mr Kemeh’s actions because he worked for them as their agent. Court of Appeal held that the term agency could not be applied to such a relationship. In order to be an agent you need to be authorised to do more than just work – needs to have authority to do more than just work, but to act on principal’s behalf i.e contracting with third parties

8. Statutory Maternity Leave
Must be employee working under contract of employment
26 weeks Ordinary Maternity Leave (OML)
26 weeks Additional Maternity Leave (AML)
Must give notice not later than end of 15th week before expected week of childbirth (EWC) – state pregnant, EWC and date on which you wish OML to start
Can change start of OML as long as you give 28 days notice
Leave cannot start later than 11th week before EWC
Notice does not need to be in writing
If can’t give enough notice for OML or change in start date for OML then as soon as reasonably practicable

9. Right to return to exactly the same job after OML
Right to return exactly same job UNLESS not reasonably practical - must be given another suitable and appropriate job
Blundell v the Governing Body of St Andrew’s Catholic Primary School
Allowed 10 keeping in touch days to do work without ending leave
Mrs Blundell had been a teacher at the primary school since 1992 – normal for classes to rotate every two years – she was allocated a reception class in 2002 – in 2003 discovered pregnant – went off sick in December2003 and returned to work in 2004 – just before return from ML – Head Teacher offered her floating role or teaching year two – Ms Blundell argued that she was entitled to return to old job – ET said that she was employed as a teacher in school and not teacher in reception class – when deciding whether a job was suitable – tribunal should consider the nature of the work, the capacity (or function) of the job and the location. Looked at contract of employment and job description

10. Statutory Maternity Pay
Eligibility
earn on average at least £111 a week gross
have worked for your employer continuously for at least 26 weeks up to the ‘qualifying week’ - the 15th week before the EWC
Give the correct notice – 28 day notice of when you want SMP payments to start and proof that you are pregnant (letter from Dr or midwife or MATB1 certificate)
Cannot start receiving SMP until 11 weeks before EWC
MATB1 issued 20 weeks before due date – it verifies the pregnancy and specifies expected week of confinement

11. Statutory Maternity Pay
What do you get?
Paid for 39 weeks – 90% of your average gross weekly earnings for the 1st 6 weeks
£ or 90% of your average weekly earnings (whichever is lower) for the next 33 weeks
Paid at the same time as your wages and Tax and NI will be deducted

12. Maternity Allowance Eligibility
Your employer must give you form SMP1 explaining why you can’t get SMP within 7 days of making their decision.
You must be employed/ self employed with and paying class 2 NI contributions OR have a Certificate of Small Earnings Exception/ recently stopped working
employed or self-employed for at least 26 weeks in the 66 weeks before the week your baby is due
earning at least £30 a week over any 13-week period
It doesn’t matter if you had different jobs or periods of unemployment.
Could still get it for 14 weeks if husband/ civil partner is registered as self employed with HMRC and pays Class 2 NI – you work for this business
This is what you will get is you are not entitled to SMP

13. Maternity Allowance What do you get
£ a week or 90% of your average weekly earnings (whichever is less) for up to 39 weeks
£27 a week for up to 14 weeks (if your baby is due on or after 27 July 2014)
Maternity Allowance is paid every 2 or 4 weeks.
May affect other benefits like JSA, Housing Benefit, Income Support, Carer’s Allowance, Council Tax Reduction

14. Pregnancy Discrimination
Treated unfavourably
Because of pregnancy OR
Because of illness suffered by her as a result of pregnancy
Unfavourable treatment during the protected period
Protected Period = date on which woman becomes pregnant to end of OML/ AML/ when decides to return
If not right to statutory maternity leave – protected period = date on which woman becomes pregnant to 2 weeks following pregnancy
Unfavourable treatment – not considered for promotion; dismissed; selected for redundancy; pressure to return to work

15. Maternity Discrimination
Unfavourable treatment
Because exercising or seeking to exercise right to ordinary or additional maternity leave
Because she is on compulsory maternity leave

16. Flexible working
Request for flexible working can be made your employer
Before 30 June 2014 only available to parents with young/ disabled children
It is now available to all employees
Need to have worked continuously for the same employer for the last 26 weeks
How does the procedure work
The employee writes to the employer.
The employer considers the request and makes a decision within 3 months - or longer if agreed with the employee.
If the employer agrees to the request, they must change the terms and conditions in the employee’s contract.
If the employer disagrees, they must write to the employee giving the business reasons for the refusal.
The employer can treat an application as withdrawn if the employee misses 2 meetings to discuss an application or appeal without good reason.
Appeals are optional but recommended to employers as good practice

17. Flexible working What must the application contain? the date
a statement that this is a statutory request
details of how the employee wants to work flexibly and when they want to start
an explanation of how they think flexible working might affect the business and how this could be dealt with, eg if they’re not at work on certain days
a statement saying if and when they’ve made a previous application
Standard form on
Right to complain to Employment Tribunal within 3 months of employer’s refusal or date on which decision should have been received – complaint that employer did not handle request reasonably/ rejected application based on incorrect facts

18. Dependant Leave
Allowed time off to deal with an emergency involving a dependant
A dependant could be a spouse, partner, child, grandchild, parent, or someone who depends on you for care
You’re allowed a reasonable amount of time off to deal with the emergency
Can be unpaid
You can’t have time off if you knew about a situation beforehand. For example you wouldn’t be covered if you wanted to take your child to hospital for an appointment.
You must tell your employer of need to take leave as soon as reasonably possible after emergency arose

19. Parental Leave Unpaid Been working for the company for a year or more
Named on child’s birth or adoption certificate
Have or expected to have parental responsibility (providing a home for the child and protecting or maintaining the child)
Need to be an employee under contract of employment – not agency worker
Not be a foster carer
Child must be under 5 or 18 if they qualify for Disability Living Allowance (18 weeks up to their 18th or 5th birthday)
Maximum can take = 4 weeks for each child in a year – usually must be taken in whole weeks. A week is average length of time employee works over 7 days

20. The Future - Shared Parental Leave
Mothers can choose to end their maternity leave after the initial two week recovery period; working parents can then decide how they want to share the remaining leave
Fathers will gain a new right to take unpaid leave to attend two antenatal appointments
There will be new statutory payment for parents on shared parental leave with the same qualifying requirements that currently apply to statutory maternity and paternity pay

21. Zero Hours Contracts
No obligation to provide work and no obligation to accept work
June 2014 the government decided to ban exclusivity clauses in zero hours contracts – where the employer insists that the employee only works for the employer.
There are still problems with zero hours contracts – these are
Income is not guaranteed
Subtle bullying by employer by not offering work
Right to SMP and SSP are affected because average earnings might be lower
Right to paid holiday may not be accrued
Would still have to claim benefits

22. Bringing a discrimination case
Employment out of scope for legal aid
Must participate in ACAS Early conciliation – time limit for bringing claim extended by at least one month
Discrimination advice subject to telephone gateway
Employment tribunal fees
- £1200 to make a discrimination claim
£1800 to make an appeal
- Remissions
Previously employment advice funded through fixed fee for legal help – out of scope due to LASPO
Discrim can get legal aid but you will have to first speak to a call centre rather than face to face- Your eligibility will be assessed and you can explain your complaint – then passed to one of national providers of legal advice. Problem will be that their is obviously a restriction in providers and also it is a very cold way of explaining an experience such as discrim.

23. How to refer a case/ query? Website: www.ablc.org.uk
Telephone: (reception)
Discrimination Advice Line:
Employment Advice Line: Tuesday 4.00.to 6.00pm and Wednesday to 12.00am.
Consultancy Service
Team: Will Stone, Ronan Mulqueeney, Noopur Talwar