claims. They can be hit with compelling claims without having knowingly done anything wrong. A few decades ago, major employers thought that it was OK to pay part-timers a lower hourly rate than full-timers or to exclude them from pension schemes. It didn’t occur to them that this practice could amount to indirect sex discrimination. A little later, the incremental pay schemes to be found in most of the public sector came under attack in cases where men were generally higher up the pay scale, and it was arguably taking too long for women to catch up. Employers need to be alert to where the next challenge may be coming from. In what circumstances, in particular, should employers and their legal advisers consider workplace mediation before any court or tribunal proceedings begin? The most obvious example is the case where the parties wish to preserve or restore the working relationship. The chances of doing so are usually reduced once proceedings have commenced and the solicitors for the parties start to document allegations and counterallegations. From my time as a judicial mediator, I can recall only two disability discrimination cases where discussions resulted in identifying reasonable adjustments that were mutually acceptable. Those cases were a tiny fraction of the mediations I dealt with. Usually, the employment relationship was irretrievably broken, and the only issues in the mediation were to agree on a settlement figure and sometimes a reference. There are also sensitive cases where there are contract or shareholder disputes in the courts as well as an employment claim, and cases where it is in everybody’s interest to negotiate a confidential agreement in order to avoid reputational damage. Religion and Belief Discrimination is a particularly topical area. What emerging trends or issues are you seeing in this field? What are the main potential challenges for employers? There have been several important appeal decisions, including one judgment from the European Court of Human Rights. On the one hand, it has been established that only the most extreme views are “beyond the pale” and undeserving of protection. On the other hand, it is equally clear that there are some limits on the ways and terms in which particular views can be expressed, particularly to avoid harassment complaints. The main challenge for employers is to avoid being trapped in the middle of a dispute and being attacked by both sides. In particular, penalising employees for expressing gender-critical views or making adverse comments about same-sex marriage or adoption could lead to complaints of religion or belief discrimination. However, doing nothing, when other employees suffer distress, WWW.LAWYER-MONTHLY.COM 19 It is essential for employers to update their disciplinary policies and provide training to define the constraints on freedom of expression, helping to avoid legal disputes while balancing the needs of all employees. for a high headline figure. For example, ‘STEM jobs’ tend to be highly paid, and there are still more men than women applying to do them. Probably the most serious misconception is that most equal pay cases involve employers who are deliberately paying women less than men for doing the same work. I am in no doubt that direct discrimination in relation to basic pay and bonuses still occurs, and that employees and their advisers can face real difficulties in obtaining information about pay disparities. I have already mentioned the (in my view regrettable) withdrawal of the statutory questionnaire procedure. However, the overwhelming majority of the equal pay cases in this century have been indirect discrimination cases— mainly equal value cases. Women contend that their jobs are of equal value to higher-paid jobs done mainly by men (often on a different site). If the women, although a majority in their jobs, have male colleagues, and the women succeed, these colleagues can pitch in with ‘piggyback’ claims. The danger here is if employers share the misconception that it is only ‘bad’ employers who have anything to fear from equal pay claims. Employers need to be aware that good intentions and a desire to treat staff fairly cut no ice when facing indirect discrimination pay
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