TACKLING DISCRIMINATION SERVICE –ROAD SHOW – WOMEN’S RIGHTS IN THE

WORKPLACE

Discrimination

• Race• Sex• Religion or belief• Sexual Orientation• Gender Reassignment• Age• Disability• Marriage and civil partnership• Pregnancy and Maternity

What is Discrimination?

• Some examples

• Direct Discrimination

• Treating someone less favourably than others because of protected characteristic

• Not being considered for a promotion

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

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

• 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.

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

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

• 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

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

Statutory Maternity Pay

• What do you get?

• Paid for 39 weeks – 90% of your average gross weekly earnings for the 1st 6 weeks

• £138.18 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

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

Maternity Allowance

• What do you get• £138.18 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

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

Maternity Discrimination

• Unfavourable treatment

• Because exercising or seeking to exercise right to ordinary or additional maternity leave

• Because she is on compulsory maternity leave

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

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 www.gov.uk/felxibleworking • 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

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

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

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

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

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

• How to refer a case/ query?• Website: www.ablc.org.uk• Email: discrimination@ablc.org.uk• Telephone: 0117 924 8662 (reception)• Discrimination Advice Line: 01179167704• Employment Advice Line: 0117 9167727 Tuesday 4.00.to

6.00pm and Wednesday 10.00 to 12.00am.• Consultancy Service• Team: Will Stone, Ronan Mulqueeney, Noopur Talwar