What’s the answer? Sex discrimination

Annie Hayes

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What’s the answer? Sex discrimination

By Annie Hayes

Lorraine Whale gets legal guidance this week on how to quash a potentially explosive sex discrimination claim.

The question:
One of our employees asked to shorten their working hours so she could leave early on a Monday to collect her child from an after school club that closed at 5pm.

Someone who should have known better informed her that yes it was ok to leave early [she had offered to come in earlier and work the lunch break where necessary.]

However, he did say that senior management frowned on women working fewer hours and that it may impact on any promotion opportunities that may arise in March. She has worked for the company for four years and has consistently been an excellent performer.

As you can imagine she is pretty livid with this comment and stating that should the promotion not arise in March then she will consider her options under the sex discrimination legislation.

It was a stupid comment by the guy, but what can we do to calm the situation down? And how successful would she be if she did decide to bring a claim?

Lorraine Whale

The answers:
Stephanie Wootton, employment law expert, Browne Jacobson

A company will as a rule be held vicariously liable for comments made about the business by employees. Your first step should be to conduct a thorough investigation into what was said by interviewing the individual who allegedly made the comment and anyone who was witness to the statement.

This will enable you to determine the actual nature of the comment. It may have been completely misunderstood, or taken out of context, which may constitute a reasonable explanation for the comment.

There is also the possibility, which needs to be eliminated, that the female employee has maliciously misrepresented what was said to her (in which case, following an investigation, disciplinary action may be appropriate). If this is the case, you need to find out why, and take the issue seriously by again conducting a thorough investigation. The results of the investigation and how you deal with the allegation will be useful if the female employee should try to bring a claim in the future alleging less favourable treatment against her.

If it is found that the comment was said, and indeed is an accurate reflection of the company’s culture, you will need to take urgent steps to rectify this. You should review your equal opportunities and diversity policies, and ensure that all staff are fully trained on the importance of such policies.

Depending on a number of factors (such as the seniority of the individual involved, the culture of the organisation, the content of your equal opportunities policies etc.) it may be appropriate to discipline the individual who made the remark. Following your investigation, you will also need to demonstrate to the female employee that this comment does not represent the view of the organisation. However, if the comment is an accurate reflection of current culture, this may not prove easy in practice.

If the female employee misses out on promotion, a tribunal could legitimately infer from the comment made that this was a result of a reduction in working hours due to the employee’s childcare commitments. This is likely to lead to a finding that the employee has been discriminated against.

In order to defeat a claim, evidence will need to be provided to establish the precise reasons why she was not promoted despite her excellent performance over the last four years and that this was not related to the employee’s childcare commitments. Also, if the employee can show this comment does reflect the culture of the organisation, they may further be able to claim that the employer has committed a fundamental breach of contract, entitling her to resign and claim constructive dismissal.

If successful with any sex discrimination claim, the employee can be awarded both loss of earnings and compensation for injury to feelings. This will be higher if she was denied promotion opportunities than for a claim solely based on the comment itself.

Compensation for injury to feelings tends to fall in to three bands: £500-£5,000 for less serious or one-off incidents; £5,000- £15,000 for more serious cases; and a higher band of £15,000- £25,000 for the most serious cases, for example where there has been a prolonged campaign of discrimination.

The potential liability for comments such as those allegedly made is, as you will see, significant. It is important that any requests for variations in working arrangements be handled in accordance with statutory flexible working procedures contained in the Employment Rights Act 1996.

Stephanie can be contacted at: swootton@brownejacobson.com

Nicholas Snowden, senior solicitor at Clarkslegal LLP

This was indeed a spectacularly inadvisable comment from the male manager (the Manager).

As you did not mention a grievance, I take it the female employee has not started one. In the absence of a grievance, it is still advisable to take proactive steps to protect the company’s position and to improve relations with the female employee (the Employee):

Interview the Manager to find out if he admits that he made the statement attributed to him. If he admits it, disabuse him of the notion that women are discriminated against in the way he has suggested and make him aware that a repeat could lead to disciplinary action being taken against him. Confirm the main points of your discussions to him in writing, so that there is a record of your actions for the file.

Write to the Employee to apologise for the comment made by the male manager and reassure her that there is no truth in the statement and that all promotional decisions will be made only on merit. You can also mention that she is a valued member of the team and you look forward to her continuing her success with the company.

Ideally, the Manager will also agree to send a letter of apology to the Employee, recognising what he said was incorrect and apologising for any detrimental effect his words may have had on her relationship with the company.

By taking these steps, you will have done all you can to repair the damage to the employer-employee relationship. You could choose to take a tougher line with the Manager. This would involve investigating the incident and, if the disciplining officer felt it warranted it, applying a disciplinary sanction such as a verbal or written warning.

Whether this tougher approach is appropriate depends on the Manager’s level of seniority. If he makes promotion decisions, then he is effectively saying that he is likely to discriminate against female employee’s in the future. However, if he is not involved in decisions about who is promoted, he was simply giving his opinion about management’s attitude (however incorrect that opinion may be), which is less serious.

If the Manager does make decisions about promotions and if it is politically possible for you to do so, it may be appropriate and safer for the company to go down the disciplinary route. If not, the relatively informal approach I have suggested may suffice.

Further action you could take would be to send the Manager on an Equal Opportunities course, or organise Equal Opportunities training for all your managers. If you decide to take this latter step, you can inform the Employee in your letter to her that you intend to do this. This will reinforce the Company’s message that it is taking the issue of discrimination seriously. If you do not already have an Equal Opportunities policy, I recommend you draft/purchase one and use that as the basis for any training.

These further steps will not only put the company in a better light should a claim arise, but it could give you the option of using a “reasonable steps” defence if a manager discriminates despite your efforts (i.e that the company had taken reasonable steps to avoid the manager discriminating). This defence could lead to a situation in which, despite a manager being found personally liable for discrimination, the company could avoid liability.

Nicholas Snowden can be contacted at nsnowden@clarkslegal.com

HRZone highly recommends that any answers are taken as a starting point for guidance only.

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