Employment Law Coffee Break | Calling someone bald is unlawful harassment, Ukrainian nationals working in the UK, and a new future of work review
Published on 19th May 2022
Welcome to our latest Coffee Break in which we look at the latest legal and practical developments impacting employers.
Calling someone bald is harassment related to sex
A employment tribunal has ruled that an electrician called a "bald ***t" during heated arguments was harassed on the grounds of his sex. The claimant was employed as an electrician and was dismissed from his employment without notice by the respondent, a small family business employing around 30 employees who are predominantly, if not exclusively male. It was recognised that industrial language is commonplace upon the shop floor, but the three-person tribunal found that there is a connection between the word "bald" on the one hand and the protected characteristic of sex on the other.
As there is no standalone claim for bullying, employees subjected to insults must bring their complaints on the grounds of harassment on the basis of a protected characteristic (the characteristic in this case being sex) or as a constructive unfair dismissal complaint. The tribunal was satisfied that the conduct towards the claimant was unwelcome and uninvited and therefore was unwanted and that the words were uttered with the purpose of violating the claimant’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for him; the conduct could therefore be considered as harassment. The issue was whether there was a link between the unwanted harassing words on the one hand and the protected characteristic of sex on the other. The tribunal found that there was a connection between the word "bald" on the one hand and the protected characteristic of sex on the other. The respondent argued that women as well as men may be bald, but the employment tribunal found that baldness is much more prevalent in men than women; as such, it is inherently related to sex. Notably, the employment tribunal found that baldness can affect adult males of all ages, so is not inherently a characteristic of age.
Employers must ensure they have clear policies setting out what is acceptable conduct in the workplace and support this with training emphasising how discrimination and harassment risks can arise as a result of workplace banter and name calling. Calling someone bald is perhaps not obviously harassment related to sex in many employees' minds, so it will be important to give clear examples to ensure employees understand the different ways in which discrimination and harassment can arise. Offensive jokes and language are best avoided in all workplaces, but in settings where it is more commonplace, it is perhaps particularly important to educate employees on the parameters of what is acceptable and what is not.
Helping Ukrainian nationals in the UK find work outside the sponsorship route
UK Visas and Immigration (UKVI) has set out ways in which individuals, employers and organisations can assist Ukrainian nationals fleeing Ukraine – the Ukranian Family Scheme visa which allows applicants to join family members or extend their stay in the UK and the Homes for Ukraine Scheme under which people or organisations can sponsor a named individual. Unlike the sponsorship route, the Family and Home schemes enable Ukrainian nationals to work freely in the UK without the need to be tied to a specific sponsoring company. Provided a Ukrainian is in the UK under one of the schemes, with the appropriate permission to evidence their status, they will have the right to remain and work in the UK freely. Read more in our Insight.
The government has also published guidance for businesses offering work to people from Ukraine. This provides for businesses offering employment opportunities to people arriving in the UK from Ukraine to complete a vacancy information questionnaire so that UKVI can understand more about the offer and share it accordingly across the Department for Work and Pensions' Jobcentre Plus network and with the Refugee Employment Network, a charity that works with organisations across the UK to support refugees into work. These roles are offered to those Ukrainian nationals already in the UK and is not a "sponsorship" visa. If a company wishes to sponsor a Ukrainian national it will need to hold the appropriate sponsor licence and the position (and salary) would need to meet the UKVI criteria.
Please do speak to your usual Osborne Clarke contact or Gavin Jones, Head of Immigration, for more details on how we can support you.
Future of work review announced
The government has announced that Matt Warman MP will "lead a review into how the government can best support a thriving future UK labour market", recognising that "businesses big and small have evolved how they work hugely in the last two years, and employees today need different skills and protections to thrive". The announcement specifically alludes to the new challenges facing businesses as they move forward from the Covid-19 pandemic, confirming that the review will inform the government's plans "to ensure the UK is equipped with the right workforce skills and working environment to seize the economic opportunities of Brexit, Levelling Up and Net Zero" and include looking at the "short and medium-term barriers and the challenges that the labour market might face, such as the role of automation".
The terms of reference state that "now is the time to look afresh at how we should attempt to shape our future labour market", although the review will "build on existing government commitments (including those made in response to the Matthew Taylor Review) to assess what the key questions to address on the future of work are as we look to build back better from the pandemic". The review will however select only a "few of these" to focus on; there should not be an attempt to provide detailed consideration of every future challenge. Those challenges chosen for further focus will be subject to a more detailed assessment involving the engagement of independent experts, academics, think tanks and relevant government departments and drawing on international comparisons where appropriate. Policy questions/challenges expressly identified which the review "could consider" include:
- the importance of place and local labour markets in creating and facilitating access to good jobs;
- the role of automation and how quickly it is happening;
- how we can build on the "good" flexibility in our labour market and the gig economy, while ensuring sufficient protections are in place to prevent exploitative practices and how this can be done in a way that encourages productivity and growth.
The review will be conducted over spring and summer 2022, following which the findings will be evaluated and a written report, including recommendations, submitted to the prime minister.
The last few years have seen the government push forward with a number of commitments outlined in the "Good Work Plan" which came out of the Matthew Taylor review, a number of which it was hoped would now be progressed further in a new Employment Bill as part of the Queen's speech last week, including a new single enforcement body for labour supply chain non-compliance and a statutory right to request flexible working from day one for all employees. It remains to be seen how these fit into this new review, but they should not be considered off the table completely.
In a parliamentary debate preceding this announcement, Kemi Badenoch (Minister for Levelling Up Communities) noted that "the vast majority of legislation to improve workers' rights does not need to come in a package entitled Employment Bill", although Paul Scully (Parliamentary Under Secretary of State for Business, Energy and Industrial Strategy) confirmed the government's commitment to introducing a number of reforms, such as statutory carer's leave, when parliamentary time allows. We also believe it likely that new regulation by a new enforcement body is coming but that it may include much wider liabilities for end users (with transfer of tax and employment liabilities up supply chains) but not quite yet. It was proposed that the new single enforcement body would, among other things, bring under one roof the enforcement of National Minimum Wage, protection of agency workers and regulation of gangmasters and may also be likely to have a regulatory role relating to the growth in use of umbrella companies following recent IR35 tax changes. Some of these umbrellas are considered by HMRC to be involved in tax evasion - the government is currently considering responses to the recent Call for Evidence relating to umbrella companies to determine what regulations should apply to such arrangements in order to eradicate non-compliance with tax requirements in labour supply chains.
We will be watching this review closely as part of our commitment to preparing employers for the future world of work. If you would like to discuss the work we are doing in this area and the challenges your business is facing, please do speak Olivia Sinfield, Employment Partner, and Kevin Barrow, Contingent Workforce Partner, who are working closely with businesses on these issues.