Category Archives: Insight Article

The term caste denotes a hereditary, endogamous (marrying within the group) community associated with a traditional occupation and ranked accordingly on a perceived scale of ritual purity.

For those unaware of the workings of the caste system, the terms can be baffling, with different names used to identify the lowest castes and different groups having different statuses depending on the caste system to which they belong.

In July 2018, the government published the outcome of a consultation on whether legislation was needed to protect against caste discrimination. The government decided that it would not legislate in this area but would rely on emerging case law. This means an arguably more laissez-faire approach of allowing case law to develop, in which it is argued that caste is covered by the current definitions of race or religious belief.

There is clearly an overlap between religious belief and race discrimination with caste discrimination, but the larger question will be whether some forms of caste discrimination will fall outside of the scope of either of these two forms of discrimination. Some castes are based on occupation or profession; therefore, individuals suffering the effects of this type of discrimination may not be protected.

The Equality and Human Rights Commission’s response to the government’s decision was:

“The government has missed a crucial opportunity to improve legal clarity and has taken a step back by looking to repeal the duty to include caste as an aspect of race in the Equality Act 2010. This is inconsistent with the UK’s international obligations to provide for separate and distinct protection for caste in our legislation.”

As things stand, those who claim to be victims of caste discrimination are now reliant on ‘caste discrimination’ being captured under race and/or ethnic origins within section 9 of the Equality Act 2010.

Where a claimant has been treated less favourably because they are believed to be a member of, or descended from, a separate race or ethnic group, the existing provisions of section 9 should come into play. However, whether this is an improvement on a statutory definition is questionable.

Call employment solicitor Karen Cole today if you have been affected by any of the issues raised in this article.

Note: This article is not legal advice; it provides information of general interest about current legal issues.

The taboo of talking about mental health has started to shift following several high-profile campaigns. Still, many employers are keeping quiet and avoiding conversations with staff, even though they have legal responsibilities, and it’s been shown to improve the bottom line.

According to the Health & Safety Executive, over 11 million working days are lost each year because of stress in the workplace. Research among workers by MIND, the mental health charity, found that a continuing culture of fear and silence around the topic was adding up to a big cost to employers, with over 20% reporting they had called in sick to avoid workplace stress, and 30% saying they did not feel they would be able to speak openly with their line manager about the issue.

Such figures highlight the need for companies to have strategies focused on mental health as part of employee wellbeing, tackle stress-related absences, and avoid potential complaints or even litigation from staff.

Employers have a legal duty to protect employees from stress at work by undertaking a risk assessment and acting on it. Where an employee suffers from a mental health condition that has a long-term effect on day-to-day activity, this may be classed as a disability, requiring the employer to take positive action under the Equality Act 2010. The Equality Act makes it unlawful for an employer to treat a disabled person less favourably because of their disability without a justifiable reason.

Employment lawyer Karen Cole:

“Best practice is for employers to have clearly stated policies that are reflected in the company’s culture, so that a manager who notices a change in personality, evidence of low mood or periods of increased absence, will feel equipped to enquire if any workplace support is needed. It needs to happen in a supportive environment where the employee feels comfortable in opening up and asking for help, if needed.

It’s important to avoid an atmosphere where an employee feels that raising the issue of mental health may affect their future prospects, or that they will feel stigmatised by asking for help. Unwillingness to talk can make for a difficult position for employers.”

Such difficulties have been highlighted in disability discrimination claims which have reached the Court of Appeal. One case involved a former employee of Newport City Council, who had been off work on three separate occasions for stress-related illness and depression. Finally, the Council asked an occupational health advisor for an opinion on whether the employee was fit for work. The opinion given was that he was not a candidate for ill-health retirement and that he was not disabled for discrimination purposes. When he was subsequently dismissed following allegations of bullying, he brought a claim of disability discrimination. The Council said that it relied upon the opinion of an occupational health expert. Still, the Court of Appeal said that an employer must make a factual judgement and cannot “simply rubber stamp the adviser’s opinion”.

This need to look more carefully was reflected in another case involving an employee who had been resistant to discussing her health issues and would not allow contact with her GP. Here the Court of Appeal found in favour of her employer, Liberata UK Ltd, because the company did all it could “reasonably be expected to have done” – it did not rely solely upon occupational health advice but reviewed it in the light of its own experience and impressions of the employee and undertook its own further investigations.

Karen added:

“In creating and maintaining a culture of wellbeing, an employer should start from a perspective of how best to provide everyone with responsible support and protection from unfair or discriminatory treatment and should reflect that in processes and practice. If anyone has issues that impact on how they may perform a particular function – whether related to physical or mental health – then it’s important to look at how to introduce reasonable adjustments to enable them to fulfil the role.”

If you have any queries regarding mental health in the workplace, call Karen Cole today!

Note: This article is not legal advice; it provides information of general interest about current legal issues.

Does an employer need to provide an employment reference?

An employer can provide an employment reference and decide on the amount of information they provide within the reference. Special circumstances may mean an employer is obliged to provide a reference. For example, when an agreed reference forms part of the terms of a settlement agreement or employers that are regulated by the Financial Conduct Authority or the Prudential Regulation Authority.

What must a reference include?

The reference can include basic facts such as job descriptions, answers to questions that the potential employer has asked, and any details about the applicant’s skills and abilities or strengths and weaknesses concerning the suitability of an applicant for the new role they have applied for.

Can a bad reference be given?

The reference must be ‘accurate’ and ‘fair’ and must not contain any ‘misleading’ or ‘inaccurate’ information.

What issues can arise with giving references?

Applicants can request a copy of the reference sent to the new employer if they wish.

It is usually best practice and safest for employers to have a policy about what references will cover. That way, employees know what to expect. It is generally safest to limit references to factual issues, such as the job applicant’s employment dates and job description. If an employer provides a reference for some individuals but not others, it could face allegations of discrimination, victimisation, or breach of trust and confidence. Employers also need to be mindful that there is no obligation within a contract with the employee to provide a reference.

Employers should record on an individual’s file whether or not the employee wishes the employer to provide a reference.

Suppose there is ever any doubt over whether or not an individual has given consent for an employer to give a reference. In that case, the employer should contact them to check whether they should provide the reference.

If a reference included information about an individual’s health, the employer would need the individual’s consent before disclosing that information.

For further advice on references or any other employment issue, speak to solicitor Karen Cole today.

Note: This article is not legal advice; it provides information of general interest about current legal issues.

Under the Act, a “data subject” can make a data subject access request (a DSAR), and a “data controller” has a duty to comply, subject to some exceptions.

Although responding to a DSAR can be time-consuming and expensive, the obligations of transparency under the Act mean that you must be willing to explain how you are handling the request and to confirm this to the employee within the required time limit. If you do not, the employee may feel aggrieved and believe that you have failed to comply with the Act’s requirements, leaving you vulnerable to a potential complaint being made to the ICO or a court order to comply with the DSAR.

It is, therefore, important to respond to a DSAR in an appropriate manner.

What to do if you receive data subject access requests from employees

You should make an initial assessment to consider:

1. whether or not you store or process data concerning the employee;
2. whether you intend to respond;
3. the scope of the request; and
4. the proposed approach to finding the data and dealing with the response.

In general, regardless of any suspicions about the employee’s motivation, you should approach compliance in a positive and helpful way:

1. you must facilitate the exercise of the DSAR;
2. the request must be handled fairly and transparently;
3. information must be provided in a concise, transparent, intelligible and easily accessible form, using clear and plain language.

In the employment forum, DSARs are frequently made in the context of an ongoing dispute or a tribunal or court claim. An employee may be genuinely motivated by a wish to find out what data is being processed and to ensure that it is accurate. However, the employee may also see the trouble and expense to which you may be put by dealing with a DSAR as offering useful leverage in a dispute and in achieving a settlement.

Your response

Your response should be in writing or, if appropriate, by electronic means. If the request was made originally by electronic means, information should be provided “in a commonly used” electronic form unless otherwise requested by the employee. At the employee’s request, the information may be provided orally as long as you are certain of the identity of the individual making the request. However, oral requests are rare.

Except in perhaps very straightforward cases, it would be sensible to take legal advice before either substantively responding to a DSAR or indicating a refusal to deal with such a request.

Are there any exceptions to the DSAR?

Under the Act, there is no obligation to comply with a DSAR in relation to the following:

Legal

Personal data in respect of which a claim of legal professional privilege could be maintained in legal proceedings. This applies only to documents which carry legal professional privilege for the purposes of English law.

Reference

A reference given (or to be given) in confidence for employment, training or educational purposes. The exemption covers the personal data within the reference, whether processed by the reference giver or the recipient.

Management

Personal data is processed for the purposes of management forecasting or management planning in relation to a business or other activity to the extent that complying with a DSAR would prejudice the conduct of the business or activity. For example, it is likely to prejudice the conduct of a business if information on a staff redundancy programme is disclosed before it is announced to the rest of the workforce.

Records of Intent

Personal data consisting of records of intentions in relation to negotiations between the employer and employee to the extent that compliance with the DSAR would be likely to prejudice the negotiations.

Other

Other exceptions relate to regulatory functions, judicial appointments and proceedings, the honours system, criminal investigations, tax collections and various corporate finance services.

What happens if you do not respond to a DSAR?

Other than in exceptional cases, you will be under a duty to take action on a request by responding. There are, however, some circumstances in which you may decide not to take action. Examples might be where:

• the person to whom the DSAR was addressed is not the data controller (perhaps because it is acting as a data processor or someone else is the controller);
• the request is unfounded or excessive; and/or
• you can demonstrate that the request infringes the EU doctrine of abuse of rights.

If so, you must tell the employee without delay and, at the latest, within one month of receipt of the request. You must give reasons for not taking action. You must tell the employee of the possibility of complaining to the supervisory authority and taking legal proceedings.

Except in clear circumstances and in which you are confident you can justify a decision not to take action on a request (as might be the case if you are not the controller), you should engage with the employee and seek to limit the request.

For more information on data subject access requests, speak to employment lawyer Karen Cole today.

Note: This article is not legal advice; it provides information of general interest about current legal issues.