In our latest employment law news roundup:-
Judge Warns Against 'Hypersensitivity'
In the case of Miss N Sithirapathy v PSI CRO UK Ltd and others: 3353038/2017, the Claimant brought 42Â discrimination and harassment complaints in the employment tribunal.
When the Claimant was asked by their manager why they did not wish to take up a role in Switzerland, the Claimant's manager stated: "You are not married, you don’t have children and you do not have a boyfriend." The manager then proceeded to convey what the transcript of the Judgment refers to as an "anecdote about the Swiss office’s ‘tolerance’ of a lesbian member of staff."
Judge Hawksworth acknowledged that the managers comments were "very unfortunate and clumsy. However, we have concluded that they did not cross the line such as to amount to unlawful harassment."
In ruling against the Claimant, the Judge highlighted the principle set out by Judge Underhill in the case of in Richmond Pharmacology v Dhaliwal [2009] ICR 724: "While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by....offensive comments or conduct....it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase."
A Quarter Of Employers Will Continue To Allow Staff To Work From Home
A YouGov poll of 1061 employers has found that 24% will allow all of their workers to work from home at least once a week, which is down from 39% at the height of the Covid-19 pandemic, but which is a fall of less than half, and which leaves levels of home working and hybrid working still well above what they had been prior to the pandemic.
Meanwhile, 18% of employers will allow most of their workers to work from home at least once a week, down from 20% at the height of the pandemic. Accordingly, this indicates that hybrid working is liklely to become increasingly prominent compared with prior to the Covid-19 pandemic. This follows on from research findings that found that hybrid working was the most effectively arrangement in terms of boosting productivity.
Nurse Dismissed Over Weekend Working Wins Appeal
A nurse who was dismissed for refusing to work weekends due to child care commitments has won her appeal. Gemma Dobson had been working fixed hours to accommodate her caring responsibilities for her 3 children, 2 of whom are disabled. However, her employer, North Cumbria Integrated Care NHS Foundation, then sought to require community nurses like her to work to least some weekends. As Dobson was unable to do this, she was dismissed.
Dobson's claim of unfair dismissal and indirect sex discrimination was subsequently unsuccessful at the employment tribunal. However, upon appeal, the Employment Appeal Tribunal (EAT) have held that tribunals must factor in "childcare disparities" when looking at the issue of indirect discrimination
The EAT added: "Whilst things might have progressed somewhat in that men do now bear a greater proportion of childcaring responsibilities than they did decades ago, the position is still far from equal. The assumptions made and relied upon….are still very much supported by the evidence presented to us of current disparities between men and women in relation to the burden of childcare."
The case has been sent back down to the Tribunal to reconsider the unfair dismissal and indirect sex discrimination claims
A representative for the for North Cumbria Integrated Care NHS Foundation Trust stated: "The trust does not believe that it is appropriate to comment further at this stage given that the matter will return to the original employment tribunal. It is important to note that the Employment Appeal Tribunal did not find in its judgment that Mrs Dobson was discriminated against or unfairly dismissed by the trust, which is why the matter will return to the original employment tribunal for further consideration."
