IGA News

Be Aware - April 2022

Be Aware - April 2022

31 March 2022

Is refusing a mother’s request for flexible working in order to facilitate childcare discriminatory?

Yes, held the Employment Tribunal in the case of Thompson v Scancrown Ltd t/a Manors.

Members should already be aware of the statutory provisions on flexible working. Since 2014 any employee with the requisite period of continuous employment will now be able to request flexible working, regardless of their reasons for wanting it.

Under the statutory right, employees can apply to vary the hours they work, the times they work or their place of work (between their home and their employer’s place of business). However as before, this does not provide an automatic right for an employee to work flexibly – it is only a right to request. Employers have the right to turn down an employee’s application provided they do so for one or more of eight permitted business reasons, i.e.

  • The burden of additional costs
  • The detrimental effect it would have on ability to meet customer demand
  • Inability to reorganise work amongst existing staff
  • Inability to recruit additional staff
  • The detrimental impact it would have on quality
  • The detrimental impact it would have on performance
  • Insufficiency of work available during the period when the employee proposes to work
  • Planned structural changes.

However, a recent Tribunal case highlights the importance of also considering flexible working requests that could give rise to other types of claim, e.g. a claim for indirect sex discrimination where the request is made by a mother returning from maternity leave, or a disability discrimination claim where the request is made by an employee as a reasonable adjustment for their disability.

This is exactly what happened in the case of Thompson v Scancrown Ltd t/a Manors where it was found that the refusal of an employee’s flexible working request to modify her working hours to accommodate her childcare responsibilities was indirect sex discrimination.

Background

Ms Thompson was employed as a sales manager by Scancrown Ltd. Scancrown was a small independent estate agency whose normal office hours were 9 am to 6 pm. On her return from maternity, Ms Thompson submitted a flexible working request to finish at 5pm instead of 6pm so that she could pick her child up from nursery in time. This request was refused. As a result of the refusal Ms Thompson resigned and filed several claims, including indirect sex discrimination.

The tribunal upheld the indirect discrimination claim and found that the Respondent’s failure to consider this flexible working request put the Claimant at a disadvantage as a result, as this meant that she was unable to collect her child from nursery. The tribunal acknowledged the Respondent’s objective justifications for the provision. It was noted that although they recognised the Respondent’s business concerns, the decision had a disproportionate effect on Ms Thompson and so the reasons provided did not outweigh the discriminatory impact on the Claimant.

In Conclusion

With employees and employers getting to grips with a post pandemic world, we are seeing an increase in flexible working requests as employees, who have previously worked from home, seek to achieve a better work life balance.

Whilst there is currently no legal right to work from home, women who are seeking flexible working for childcare reasons will have the added layer of protection from discrimination laws and this will need to be considered. When considering such requests employers should consider:

  • If the request has been refused for a business reason, are there any alternative working arrangement that can be suggested?
  • If there are concerns, is aa trial period appropriate in order to assess the impact of modified working arrangements on their workplace?

Keeping clear records of their reasoning when making decisions and making sure that due consideration is given to the effect of any refusal on the employee.

  • Where possible, ensuring they remain consistent in how such requests are treated.

Is refusing to come to work for fear of catching covid a Philosophical belief and therefore protected by the Equality Act?

No, held the Employment Tribunal in the case of X v Y.

This case involved an employee who took the decision in July 2020 to not return to work on the grounds of health and safety as they were afraid of catching Covid-19 and passing it to their partner. The employer therefore withheld her wages. X therefore took their employer to the employment tribunal alleging that this action was discrimination on the grounds of this belief in regard to Coronavirus and the danger from it to public health.

The Employment judge applied the five criteria set out in Granger plc v. Nicholson [2010] IRLR 4 to address the preliminary issue of whether her belief fell within the terms of section 10 of the Equality Act 2010:

i. The belief must be genuinely held.

ii. It must be a belief and not, an opinion or viewpoint based on the present state of information available.

iii. It must be a belief as to a weighty and substantial aspect of human life and behaviour.

iv. It must attain a certain level of cogency, seriousness, cohesion and importance.

v. It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.

Whilst there was no dispute that the belief was genuinely held (i), it was found that this was a reaction to a threat of physical harm based on the present state of information available about Covid-19, and therefore not a belief for the purposes of section 10 (ii). As such no matter how genuine or weighty the opinion (iii), no matter how cogent, serious and important the opinion (iv), and no matter how worthy of respect the opinion was in a democratic society (v), it could not amount to a belief.

In Conclusion

Under the Equality Act 2010, an employee is protected from discrimination because they hold (or do not hold) a particular religious or philosophical belief. This is a welcome clarification where employees are motivated by concerns regarding Covid-19 as to if and when these fears become protected characteristics of religion and belief. It is also a useful reminder as to the steps to be considered by employers where allegations of discrimination on the grounds of religion and belief are raised. However, it did not consider whether any other beliefs by an employee would amount to discrimination.

Paying for Music

“I have been called by a company and told that I need to pay them to listen to the radio, but I thought the radio was free. Are they correct?”

It seems as if it is that time of year again. Over the last few years we have seen a rise in the number of garages being contacted by performing rights societies. Are these demands for payment legitimate, and if so why are we liable to pay them?

Who are they?

There are two companies: PPL, who generally act on behalf of the performers of or those recording the music; and PRS, who generally act on behalf of the writers, composers and publishers.

Both PRS and PPL are royalty collection societies. They were established to collect royalties from music created by their members and to distribute the proceeds. If you require a licence from one, you will require a licence from both.

In fact in 2018 the y formed a joint venture in order to simplify the process and offer one license, TheMusicLicence, to cover both activities.

Why do I need to pay them?

When a song or piece of music is written, the person who writes it owns it. This is called copyright. Most performers allow CD and broadcast through the radio or television for private use only. If the music is to be performed in public, permission is needed from the rights holders before each song is performed

So what constitutes a ‘public’ performance?

Music is performed ‘in public’ when it is performed outside what could be regarded as the domestic circle or home life. This has been the cause of a number of cases and can be complicated. In its most basic form the question is :-

1. Whether the performance was in a public place; and/or

2. Whether more than one person can hear the performance.

It is likely that playing music in either a waiting room or in a workshop, where more than one person can hear it, will be a public performance.

What are the options?

1. Stop listening to the radio. If there is no music playing there is no requirement for a licence.

2. Allow staff to listen to their own music through personal players and headphones. This is a simple option and cost effective, but care should be taken to assess the risk in your workplace when considering this. Depending on the work environment, listening to music on headphones can carry a risk greater than the cost of a licence.

3. Continue to listen to music without a licence. Both PRS and PPL are required to prove their case in court. Where this is in a workplace it can be difficult. However, this is a risky course of conduct as, in the event this can be proven, compensation can be backdated, and if proceedings are issued any fees are likely to be recoverable as well.

4. Buy a licence. If purchased in advance in most cases the cost of a licence can be minimal if considered on a daily basis.

Subject Access Requests

“When I receive a Subject Access Request do I have to provide everything with a person’s name on?”

The Short answer is no. Whilst a person’s name will be personal data, this does not mean the whole content of any document becomes their personal data. There is no need to disclose the whole of an email, or any document just because they are addressed to an individual. Any content not related to an individual is not personal data and can be withheld/redacted. Here is an example straight from the Information Commissioner’s Office,

“An employee makes a SAR for all of the information you hold about them. During your search for their personal data, you find 2000 emails which the employee is copied into as a recipient. Other than their name and email address, the content of the emails does not relate to the employee or contain the employee’s personal data.

You do not have to provide the employee with a copy of each email (with the personal information of third parties redacted). Since the only personal data which relates to them is their name and email address, it is sufficient to advise them that you identified their name and email address on 2000 emails and disclose to them the name contained on those emails, e.g. John Smith, and the email address contained on those emails, e.g. JohnSmith@org.co.uk. Alternatively you could provide one email with other details redacted as a sample of the 2000 emails you hold. You should also clearly explain to the individual why this is the only information they are entitled to under the UK GDPR, but remember to provide them with supplementary information concerning the processing, e.g. retention periods for the emails.

However, if any of the content within the email relates to the individual, you should provide them with a copy of the email itself, redacted if necessary.”

In Conclusion

Whilst the GDPR / Data Protection Act 2018 require you to confirm what personal data you hold, how you process it and to provide a copy upon request within 30 days, this does not give a data subject a right to anything and everything with their name on it. If you do receive a request for information that you do not believe is personal data, we would advise that you confirm to the subject that you hold the document, confirm the personal data contained and either withhold the document or redact any information that is not personal to the subject (depending on how much). We would also advise that you set it aside a full set of the original documents so that this can be provided upon request to either the Information Commissioners Office or a court.

General Note

Don’t forget, this advice is general in nature and will need to be tailored to any one particular situation. As an RMI member you have access to the RMI Legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in the situation above, contact us on 01788 225 908 at any stage for advice and assistance as appropriate.