April’s Gender Pay Gap reporting has highlighted to us that we really need to be doing more to promote female staff into higher positions. As luck would have it, we are currently recruiting for a new manufacturing director, and have three candidates – one of whom is a woman. She would be a great recruitment, but the other two are more experienced and suitable. I’m being advised by the MD, however, to hire the female candidate to ‘get the numbers up’. Leaving aside his slightly crass wording, if we were to hire a still very qualified, but inferior, candidate based largely on her gender, would we be discriminating against the two men we rejected?
Generally, the working population is fairly balanced when it comes to gender, so if the candidates applying for your vacancy are not reasonably balanced you should probably question why that is the case. Perhaps your advertisement or assessment criteria unintentionally discriminates against women?
Pay gap reporting helps organisations better understand the size of their pay gaps and identify the relevant issues that need to be addressed. Higher pay gaps are typically produced in occupations where women are underrepresented. It has been suggested that the gender pay gap should be treated as an opportunity for employers to take positive action, such as developing a plan to encourage and support women to apply for more senior and better paid roles. In doing so they can seek to rebuild the attrition of female talent in the business. It must be remembered however, that simply employing more women will not necessarily close the gender pay gap, particularly if those female employees are paid less and, for example, the leadership team remains male-dominated.
There is a difference between discrimination and unlawful discrimination. Positive action is a limited exception to the prohibition on discrimination in employment governed by the Equality Act 2010. An employer can lawfully recruit a female candidate over a male candidate because of her sex where:
1 there is a “tie-breaker” situation;
2 the employer does not have a blanket policy on treating women more favourably in connection with recruitment than men regardless of merit;
3 recruiting the female candidate would be proportionate in terms of remedying the underrepresentation of women in the workforce.
Here it appears that recruiting the female candidate would be discriminatory on the basis that she is considered “inferior” and would be recruited regardless of merit. This assessment of the female candidate being “inferior” might, however, be tainted by a conscious or subconscious gender bias and/or the female candidate’s lack of experience could reflect historic sex discrimination.
As a result of these systemic issues, there is no quick fix to narrowing the gender pay gap issue, even where an employer is attempting to take positive action. Organisations need to engage and understand the problem in the context of a UK-wide job market which is inherently discriminatory.
Our factory is in an old, Victorian-era building, and has very few of the ‘mod cons’ that workers in newer sites can enjoy. As a result, we enjoy freezing temperatures in the winter, and stifling heat in the summer. We’ve all mentioned it to senior management, who have told us in no uncertain terms to get on with it. Is there a legal argument we can take to them on workplace temperatures?
Even with today’s high-tech, air-conditioned buildings, you will find there is a never-ending daily battle in workplaces across the UK about the optimum temperature required. This debate can be particularly fiery on days when weather changes are unexpected, such as the recent snow in March.
Somewhat surprisingly, there is no law for minimum or maximum working temperatures that dictates when a workplace is too cold or too hot. The Workplace (Health, Safety and Welfare) Regulations 1992 places a legal obligation on employers to maintain a “reasonable temperature” in the workplace but does not specify temperatures. The relevant code of practice accompanying the regulation suggests that the minimum temperature should normally be at least 16⁰C, but it does not specify a maximum temperature.
Nevertheless, employers owe a duty of care to their employees in relation to health and safety, and the provision of a suitable working environment is a duty implied into all employment contracts. As an example, an employer has been held by the Employment Tribunal to be in breach of this duty by requiring a workshop employee to work in temperatures of 9⁰C in winter.
It is therefore possible to argue that your employer has not provided a safe working environment and is in breach of your employment contract by failing to regulate the extreme temperature conditions in the factory. How successful this argument is will most likely depend on the actual temperatures you are required to work in, and it might be worth gathering data to evidence the temperatures recorded. I would recommend raising this complaint through your employer’s formal grievance procedure as this would place greater pressure on them to carry out an investigation and formally address the problem.
Another option is to raise a grievance that your employer has acted in breach of another implied term of mutual trust and confidence. You could argue that your employer has acted in breach of this duty by dismissing your legitimate concerns and failing to take steps to address your complaints regarding the workplace temperatures. As a result, you have lost trust and confidence in them.
It might be the case that, following an investigation, your employer recognises that there is an issue with the temperature and installs fans and/or heaters to help regulate the workplace temperature. Although it might cost money, your employer would most likely reap rewards from doing so. Various studies have shown that getting the temperature right should not be underestimated, as it can improve productivity, job satisfaction and reduce levels of absence in the workplace.
Our founder and chairman, a man now in his late 70s, has been accused of historical crimes, which are now being investigated by the police. He denies them, and no charge has yet been brought against him. However, the media have found out about the story and have reported on the allegations. We are worried that his association with the company (we carry his name) could be damaging our reputation. Is there a way we can remove him from the board? His role is purely ceremonial, and he has very little to do with the day-to-day running of the company.
The strategy to take depends on the nature and strength of the allegations and the potential risks to the company. It is important to be mindful that the individual would have rights
as a director, employee and possibly as a shareholder if he was removed.
The first practical step would be to discuss the issue at board level. In light of the bad press, the chairman, acting in the best interests of the company, may agree to voluntarily resign from the board while the allegations blow over.
The company might also seek to engage a PR consultant to help manage the situation and avoid any reputational damage. An alternative practical step could be to change the name of the company. The articles of association of the company would dictate how this can be done, but most likely it would require a resolution to be passed by the directors or shareholders.
If a decision was made to remove the chairman as a director, the articles of association of the company will contain provisions about how to do this. There is a statutory procedure under the Companies Act 2006, which provides that more than 51% of eligible shareholders must vote in favour of a decision to remove a director. Special procedures do need to be followed, for example which allow the director to attend the relevant shareholder meeting.
Any procedure in relation to removing him as a director should not be looked at in isolation of his position and rights as a director, employee, and shareholder (if applicable). There may be a shareholders’ agreement, which could include restrictions on director removal and may contain certain protections regarding his shareholder status. The situation may also justify disciplinary action as an employee of the company.
If a decision is made in relation to removing him from the company without fully considering his rights in all three capacities, and without reasonable merit, this could lead to the company facing other claims, such as unfair prejudice if he is a shareholder, or unfair or wrongful dismissal if he is an employee.
