BCLP At Work

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UK HR Two Minute Monthly: covert surveillance; holiday carry over; sexual orientation discrimination; interim relief

Summary

Our December 2019 update outlines the key UK employment law developments over the last month. It includes cases on covert surveillance, sexual orientation discrimination when there is no identifiable victim, harassment under the Protection from Harassment Act 1997, the doctrine of state immunity as it applies to British civilians working in the UK for a foreign state, the test for interim relief in whistleblowing claims and the latest ECJ decision on holiday carry over in sickness absence cases. We also outline other points of note, including the Government’s response to the Women and Equalities Committee report into the use of NDAs in discrimination cases and an independent review of the international evidence on the impact of minimum wages.

Covert CCTV surveillance to monitor workplace theft was not an infringement of employees’ right to privacy under Article 8 ECHR

The European Court of Human Rights has held that the Spanish courts did not fail to protect the Article 8 ECHR rights of employees when they upheld their dismissals based on footage obtained from concealed cameras in the workplace.

The employees worked as supermarket cashiers. An investigation was launched after significant stock discrepancies were identified, which included installing both visible and concealed cameras. Notices were put up in the supermarket to inform customers and staff that CCTV was being used, but staff were not told about the concealed cameras.

The covert CCTV helped identify the five cashiers who were involved in the thefts and all were dismissed. Their unfair dismissal claims

Unconscious Bias in the Workplace

April 11, 2019

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In 2019, discrimination is rarely overt or deliberate.  As a society we have come a long way from the ‘No Blacks, No Dogs, No Irish’ signs of decades past.  But conscious intent is not necessary for unlawful discrimination to occur.  We all have unconscious biases based on stereotypes and prejudices.  We may not always realise our biases, but we do need to be aware that biases related to protected characteristics such as age, sex and gender can give rise to unlawful treatment.

In the UK, under the Equality Act 2010, direct discrimination occurs where “because of a protected characteristic, A treats B less favourably than A treats or would treat others”.  In a discrimination claim, it falls to the Tribunal to consider the reason why the claimant was treated less favourably.  In other words, what was the conscious or subconscious reason for the treatment?  This requires the Tribunal to undertake an enquiry into the mental processes of the alleged discriminator.

As a reminder, the burden of proof lies initially with the claimant, and then shifts to the employer where the claimant shows a ‘prima facie’ case of discrimination.  If the claimant can establish a sufficient difference in treatment then there is likely to be a prima facie case of discrimination.  The alleged discriminator will then need to show a cogent reason for its actions.  Where there is no overt evidence of discrimination, the Employment Tribunal is entitled to draw inferences from the surrounding facts in order to conclude that unlawful

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