December 2024 Employment Law Newsletter | Consensus HR – Herts, Beds
Welcome to our latest December 2024 Employment Law Newsletter | Consensus HR – Herts, Beds. In this newsletter, we focus on:
- BBC journalists appeal against equal pay ruling
- Employment Rights Bill – employers who commit serious offences will be prohibited from sponsoring foreign workers:
- Comments about an employee’s accent could be ‘related to’ race under harassment law
BBC journalists appeal against equal pay ruling
Four female BBC journalists, who argued that they were paid significantly less than their male counterparts, have lodged an appeal in the Employment Appeals Tribunal (EAT).
Two of the journalists settled an equal pay claim against the BBC in 2014. Similar claims were also brought in 2019 by the two other journalists, and all four claimants entered into settlement agreements with the BBC in 2020. However, they have brought further claims alleging that the BBC’s pay practices have remained discriminatory despite the settlement agreements, arguing that these only addressed historical pay disparities but did not remedy ongoing inequality. The Employment Tribunal (ET), struck out the further claims concerning equal pay, stating they arose from the same facts as the previous claims and therefore, could not be re-litigated. The journalists’ other claims, including age and sex discrimination, and detriment related to trade union membership, were allowed to proceed and are due to be heard in March 2025.
The journalists are appealing the ET’s decision to strike out the equal pay claim, arguing that the 2020 settlement agreements only dealt with past discrimination and should not prevent them from challenging alleged discriminatory pay practices going forward. They also believe the appeal raises important questions about whether settlement agreements can validly cover future unlawful actions.
Employment Rights Bill – employers who commit serious offences will be prohibited from sponsoring foreign workers:
In an amendment to the Employment Rights Bill, employers who repeatedly breach Sponsor Licence rules and responsibilities or other visa rules, or who breach employment laws, such as paying the minimum wage, will be forbidden from employing people coming to the UK on a work visa for at least two years.
The amendment is designed to control visa abuse and limit exploitation.
Other changes proposed include:
- Sponsor Licence Action Plans will be strengthened.
- Employers will be prohibited from passing on any costs involved with sponsorship to a skilled worker.
The Minister for Migration and Citizenship, Seema Malhotra MP, stated that “The new powers will ensure that employers who recruit internationally will be required to pay associated costs themselves, which is fair and reasonable for employers that do not recruit from the domestic workforce”.
Comments about an employee’s accent could be ‘related to’ race under harassment law:
In Carozzi v University of Hertfordshire and another [2024] EAT 169, the EAT held that the ET was incorrect to find that comments about an employee’s accent were not harassment under the Equality Act 2010 because they were not motivated by her race. The EAT stated such comments could nevertheless be “related to” race.
When deciding if conduct is ‘related to’ a protected characteristic (race, religion or belief, sex, sexual orientation, age, disability, gender reassignment, pregnancy and maternity, and marriage or civil partnership), the Court or Tribunal has a wide discretion. They can consider:
- The conduct inflicted on to the Claimant because of a protected characteristic. For example, shunning a person because they have had or perceived them to have had a gender reassignment.
- Conduct related to a protected characteristic due to the form it takes, for example racist or homophobic banter.
- Conduct that is directed at others but observed by the Claimant, for example in Coffey v Coople (UK) Ltd ET/3206057/21 ,the Claimant successfully brought a claim for sexual harassment after seeing two colleagues being sexually assaulted.
The context in which the conduct takes place will also be considered by the Court or Tribunal.
In the Carozzi v University of Hertfordshire and another, the Claimant was a Brazilian national who brought various employment law claims against the University, one of which was a harassment claim concerning her accent.
The ET dismissed the claim. The EAT allowed the appeal, although on another point of law. Regarding the issue of the Claimant’s accent, the EAT concluded that there is no requirement in a harassment claim for a “mental element” equivalent to that in a claim of direct discrimination. It stated that a person’s accent could be an important part of their identity and could be connected to race. Therefore, criticism of an accent could violate a person’s dignity.
This case highlights that conduct can be related to a protected characteristic either:
- where it is motivated by the protected characteristic, or
- where, regardless of the conscious or unconscious motivations of the alleged harasser, there is objectively some relationship between the conduct or language used and a protected characteristic.
The most obvious examples of the latter are sexist jokes and racial epithets. However, the unwitting use of, for example, homophobic, transphobic, or ableist language could also meet the definition of harassment, depending on the context. Employers may therefore want to take note of this decision when planning Equality Act 2010 training sessions and resources.
