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EMPLOYMENT LAW UPDATE: 12.04.11
PRESENTED BY:
Andy Jamieson - DirectorKeeley Baigent - Director
Jo McCarthy - Associate
What’s not coming into force this April?
1. The Bribery Act - now 1 July 20112. Right to request time off for training will not be extended to SME’s3. Right to request flexible working will not be extended to parents of children under 18.4. Specific public sector equality duties deferred until July 2011.
What’s new?•From 1 April 2011 a moratorium exempting micro and start-up businesses from new domestic legislation began
–“micro” – Businesses with fewer than 10 employees–“start up” – Those which have commenced a trade, profession or vocation after 1 April 2011
•Moratorium will last for 3 years therefore exempting qualifying businesses from the proposed flexible shared parental leave scheme and extension of flexible working rights.
What’s new?
• Additional paternity leave and pay
–The Additional Paternity Leave Regulations 2010–The Additional Statutory Paternity Pay (General) Regulations 2010 came into force on 6 April 2011
• Apply to children due (or matched for adoption) on or after 3 April 2011.
What’s new?
•Under the new Regulations a mother will be able to transfer up to 6 months maternity leave to the father.
•Some of the leave may be paid if taken during the 39 week maternity pay period.
•Statutory maternity, paternity and adoption pay increased from £124.88 to £128.73 from 6 April 2011.
What’s new?On 5 April 2011 general public sector equality duty
came into force.
Requires public bodies and others who exercise public functions
• To have due regard to need to eliminate unlawful discrimination, harassment and victimisation
• To advance equality of opportunity• To foster good relations between people who share a
protected characteristic and those who don’t
What’s new?
From 6 April 2011 the default retirement age was phased out and the statutory
retirement procedure abolished.
What’s new?
s.159 Equality Act brought into force from 6 April 2011.
• Provides for positive action in recruitment and promotion.
• Allows an employer to take a protected characteristic into account if he thinks people with that characteristic are under represented in the workforce or suffer a disadvantage.
Positive action provisions only exercisable where:
• the person in question is “as qualified as” other applicants to be recruited or promoted.
• The employer does not already have a positive action policy in place for dealing with recruitment and promotion.
• The more favourable treatment is a proportionate means of achieving the aim of overcoming or minimising disadvantage or encouraging participation.
What’s new?
The Equality Act Codes of Practice came into force on 6 April 2011.
• Give guidance on all the protected characteristics recognised in the Equality Act.
• New codes will be admissible as evidence in Tribunal proceedings.
What’s new?
Tax changes for post termination payments after P45 has been issued.
• Previously such payments made under Compromise Agreements were taxed at basic rate.
• Are taxed at same rate as if payment made during course of employment.
What’s new?
On the horizonBribery Act 2010.
• Coming into force 1 July 2011.• Outlaws “bribery” i.e. giving someone a
financial or other advantage to encourage that person to perform their functions or activities improperly or to reward that person for having already done so.
• Your organisation can be liable if a senior person, such as the MD, commits a bribery offence.
• Liability will also arise where employer or agent pays a bribe specifically to get or keep business or gain a business advantage.
• To be prosecuted DPP or Director of Serious Fraud Office must be satisfied that conviction more likely than not and that prosecution in public interest.
On the horizon: Bribery Act 2010
• No offence committed where business can show it had adequate procedures in place to prevent bribery.
• What counts as adequate depends on the bribery risks you face.
• Act recognises 6 principles in assessing risk
On the horizon: Bribery Act 2010
The 6 principles in assessing risk:
1. Proportionality• Action you take should be proportionate to risk
2. Top level commitment
3. Risk assessment
4. Due diligence
5. Communication
6. Monitoring and review
On the horizon: Bribery Act 2010
AGE, SEX AND DISABILITY
DISCRIMINATION Presented by
Keeley Baigent
AGE DISCRIMINATIONHave any job applicants succeeded in claims for discriminatory job adverts?
Berry –v- Recruitment Revolution [2010]
“Junior Administrator” suitable for “a school leaver / someone who had recently taken A’Levels”
ET – claim failedClaimant had not applied so had not been disadvantaged / suffered a detriment
EAT agreed Warning given: “those who try to exploit legislation for financial gain were liable to have costs awarded against them”
AGE DISCRIMINATIONKeane –v- Investigo & Others [2010]
Job vacancies clearly aimed at recently qualified accountants
Keane over qualified
ET – claim failedApplications were not genuine so claimant not disadvantaged / suffered detriment
EAT agreed“An applicant who is not considered for a job in which he or she is not interested cannot in any ordinary sense of the word be said to have suffered a detriment or been disadvantaged”
AGE DISCRIMINATIONNot calling key witnesses to give evidence or preparing your defence in a reasonable manner could mean you end up on the back foot
Canadian Imperial Bank of Commerce –v- Beck [2010]
Beck found to have suffered age discrimination
Burden of proof shifted to employer
Bank’s failure to call key witness hampered Bank’s chances of rebutting discrimination
AGE DISCRIMINATIONWas a fixed retirement age of 65 years old for partners justified?
Seldon –v- Clarkson Wright & Jakes & Another [2010]
ET accepted 3 legitimate aims:
(i) giving senior solicitors opportunity of partnership so ensuring that they didn’t leave (ii) facilitating partnership & work force planning & (iii) limiting need to expel partners by way of performance
management so contributing to congenial & supportive culture
AGE DISCRIMINATIONET held retirement at 65 to be a proportionate means of achieving firm’s legitimate aims
EAT agreed except that:
held retirement age of 65 didn’t justify 3rd aim as no evidence that performance tended to decline at that age
CofA:
Confirmed that employer’s aim does not have to pursue a social policy objective to be legitimate
AGE DISCRIMINATIONMere fact that employer might have chosen higher retirement age could not result in retirement age of 65 not being justified
DRA of 65 for employees supported choice of retirement age of 65
Note:
Decision and reasoning important for employers who wish to justify retention of a fixed retirement age for employees
AGE DISCRIMINATIONCan cost alone justify a decision to discriminate?
Woodcock v Cumbria Primary Care Trust [2010]
Dismissal of W was justified
Legitimate aim being pursued was: “to bring about Mr W's dismissal for redundancy and to avoid the additional costs to the Trust of his attaining the age of 50 before the end of his notice period and thus being entitled to enhanced payment"
W's dismissal without consultation was a proportionate means of achieving that aim
SEX AND AGE DISCRIMINATION
Are older women more at risk of discrimination than others?
O’Reilly –v- British Broadcasting Corporation & Another [2011]
The facts:
Network wanted to “refresh” the presenter line up for countryfile
Majority of 2nd tier presenters chosen in their mid 30s & O not considered
Leakage of ageism complaints to media
The decision:
Combined discrimination protected
BBC’s failure to consider O as 2nd tier presenter direct age discrimination not justified
Wish to appeal to younger viewers was a legitimate aim
Choosing younger presenters did not satisfy aim
Not proportionate to pander to assumed prejudice of younger viewers
SEX AND AGE DISCRIMINATION
SEX DISCRIMINATIONSurely if an employee participates in ‘sexual banter’ they can’t then claim they have been sexually harassed
Munchkins Restaurant Ltd and another v Karmazyn and others [2010]
Some of the inappropriate conversations were initiated by the Claimants
Despite this held that Claimants been sexually harassed
Respondents held jointly & severally liable for awards
Each Claimant awarded £15,000 for injury to feelings
SEX DISCRIMINATIONGossip about ‘whose the father’ could get employers into hot water!
Nixon v Ross Coates Solicitors and Anor [2010]
EAT found:
Gossip was pregnancy related, it was unwanted & Claimant found it distressing
Therefore it amounted to harassment
SEX DISCRIMINATIONNot even the lawyers get it right all the time!
De Belin v Eversheds Legal Services Ltd [2011]
The Facts:
Female colleague couldn’t be assessed against redundancy selection criterion as on maternity leave during assessment period
Female colleague given maximum notional score against the criterion
Resulted in B being selected for redundancy
SEX DISCRIMINATIONET:
Meaning of ‘special treatment’ considered
Didn’t extend to giving female colleague maximum notional score
B held to have been discriminated against on grounds of sex & unfairly dismissed
B awarded £123,053 compensation
SEX DISCRIMINATIONEAT:
Agreed with ET
Special treatment only extends to what is 'reasonably necessary to compensate for disadvantages occasioned by condition'
Benefit offered not reasonably necessary
Less discriminatory alternatives available
SEX DISCRIMINATIONCan a man claim pregnancy related discrimination because of his association with his pregnant partner? He can try:
Kulikaoskas v MacDuff Shellfish and another [2010]
K claimed had been dismissed because of his partner’s pregnancy
ET dismissed claims
EAT agreed with ET
SDA should not cover ‘associative pregnancy discrimination’
Associative pregnancy discrimination may be protected under the Equality Act 2010
Guidance on determining whether a mental illness could amount to a protected disability
J v DLA Piper UK LLP [2010]
Mental impairment does not have to be clinically recognised
Clinical depression amounts to an impairment
Medicalisation of work events does not
DISABILITY DISCRIMINATION
DISABILITY DISCRIMINATIONEAT held:
ET erred in considering mental impairment before effect
Consider adverse effect on ability to carry out normal day-to day-activities 1st
Consider question of impairment 2nd
If 1st consideration satisfied may follow impairment suffered
May make it easier to show mental impairment amounts to a disability
DISABILITY DISCRIMINATIONHow far does an employer’s duty to make reasonable adjustments go?
Chief Constable of South Yorkshire Police v Jelic [2010]
EAT held:
Duty to make reasonable adjustment extended to swapping jobs of disabled and non disabled employees
Accepted that this would not be a reasonable adjustment in every case
Unfair dismissal, religious discrimination and sexual orientation discrimination
Presented by
Jo McCarthy
Unfair Dismissal
Humour and the band of reasonable
responsesHow far will the band stretch?
Unfair Dismissal
The caseBowater v Northwest London
Hospital Trust
(2011) EWCA Civ 63
Unfair Dismissal
The Facts
Unfair Dismissal
The “Lewd remark”…
“It’s been a few months since I’ve been in this position”
Unfair Dismissal
Legal issues arising
• ET found unfair but overturned by EAT
• CA reversed decision
• The “elastic band”
• “majority of public” would have found funny
• ET must not substitute their own opinion
Unfair Dismissal
Comment
This case may signify the return of an element of pragmatism to the ET, and an abatement of po-faced political correctness.
Unfair Dismissal
Investigation, Investigation, Investigation…..
Can there ever be too much?
Unfair Dismissal
The Case
Salford Royal NHR Foundation Trust v Roldan (2010)EWCA Civ
522
Unfair Dismissal
The facts
Unfair Dismissal
Legal issues arising
• The more serious the consequences of the dismissal the more investigation required
• Where consequences are very serious may have to give benefit of doubt to the employee
• Principles in A v B EAT 2003 IRLR 405 developed further
Unfair Dismissal
Comment/Practical tips
• Make sure you have a thorough audit trail of investigation
• If in doubt, investigate further
Unfair Dismissal
“You must be poking!”
Issues around social networking
Unfair Dismissal
The case
Gill v SAS Ground Services UK Limited ET/2705021/09
Unfair Dismissal
The facts
Unfair Dismissal
The legal analysis
• Social networking issues are tricky and relatively new
• Balance to be struck between respective rights of employee and employer
• Consider what are legitimate concerns• Put in place appropriate policies to guide
staff
Unfair Dismissal
Issues in relation to representation at internal
hearings
Representation
Hand holding…
Representation
The case
Governors of X School v R
Representation
The facts
Representation
The legal analysis
• Article 6 ECHR gives right to a fair trial
• Directly enforceable against state employees
• Tribunal must make decisions taking HRA into account
• Must be more than just losing “job”
Representation
Comment/Practical tips
• Be prepared to be flexible• Remember duty of reasonable adjustment
(EA 2010)• Legally qualified reps only where career is
at stake (FSA, social worker, doctor etc)• Be wary of troublesome spouses and over
protective mothers
Representation
Religious Discrimination
Case law developments
• Employment Equality (Religion and Belief) Regulations 2003 are now part of the Equality Act
• Slow start with claims
• Now on the increase – over 20% increase in 2010
Religious Discrimination
Good news and bad news for employers
Religious Discrimination
Bad news(but good news for
witches, UFO geeks and Swampy!)
The breadth of beliefs covered under the Regulations is
increasing beyond belief (!)
Religious Discrimination
Good News
The Courts appear to be recognising the distinction
between holding a protected belief per se and the manner in which
that belief is manifested
Religious Discrimination
Some cases
Believe it or not……
Religious Discrimination
The case
Power v Greater Manchester Police Authority EAT 0087/10
Religious Discrimination
The Facts
Religious Discrimination
The legal analysis
The EAT found “his beliefs were worthy of respect in a democratic society, and had sufficient cohesion and cogency to be a philosophical belief under the Regs”
Religious Discrimination
Legal analysis…
EAT used the five key characteristics identified in Grainger v Nicholson setting out what a philosophical belief must have if it is to be protected
Religious Discrimination
Grainger v Nicholson•Genuinely held•Not an opinion or viewpoint•Related to a substantial aspect of human life and behaviour•Cogent, serious, cohesive and important with a similar status to religion•Worthy of respect in a democratic society without conflicting with the fundamental rights of others
Religious Discrimination
He failed at the second hurdle – see Daily Mail
reports
Religious Discrimination
Comment/Practical tip –Call Ghostbusters
Religious Discrimination
The Thrill of the Chase
Religious Discrimination
The Case
Hashman v Orchard Park Garden Centre
Religious Discrimination
The Facts
Religious Discrimination
The Legal Analysis
ET found on 11.3.11 that “(he) had established that (his) beliefs in the sanctity of life and the moral duty to avoid unnecessary suffering to animals constituted a philosophical belief for the purpose of protection under the Equality Act “
Religious Discrimination
Manifestation of beliefThe foregoing cases establish the right to hold a belief is absolutely protected but recent case law has demonstrated that the manifestation of that belief is not afforded the same level of protection
Religious Discrimination
The Cases
• Ladele v LB of Islington and anor 2010 ICR 532
• Rao v University Hospitals of Leicester NHS Trust 1901029/09
Religious Discrimination
Comment
• Victory for common sense?• Recognition of mismatch between holding
a belief and carrying out of duties• Latter has to prevail• Religion/belief prevents performance of
duties = less favourable treatment not on grounds of religion/belief
Religious Discrimination
Religious iconography or clothing
• Well publicised area• By and large it will be (generally indirect)
discrimination to prohibit the display of religous iconography or clothing where it does not impede one’s duties.
• Fine lines often need to be drawn – see following cases
• Chaplin v Royal Devon & Exeter NHS Foundation Trust 1702886/09
• Germain v Home Office 2306431/06
Religious iconography or clothing
Consider……..
Religious iconography or clothing
Sexual orientation discrimination
Case law developments
• Cases involving services have dominated the headlines
• Employment related claims still on the increase by 18%
• Two cases of interest ….
Sexual orientation discrimination
The Cases
• HM Land Registry v Grant 2010 IRLR 583
• Facts
• Practical tip! Policies should emphasise need for discretion and potentially harmful effects of gossip
Sexual orientation discrimination
• Job Centre Plus v McCarthy EAT 0419/09
• Facts
• Practical tip! Consistency with investigations/disciplinary sanctions where dealing with employees with protected characteristics
Sexual orientation discrimination
Protecting employees from harassment by customers/service users /third parties
S 40 Eq A• S40 extends liability of employers for persistent
harassment of employees by third parties (previously only applied to sex discrimination)
• “persistent” amounts to “at least two occasions”• Doesn’t have to be the same person• Remedies are the same as for all other forms of
discrimination
Protecting employees from harassment
S 40 EqA – Practical tips
• Put policies in place
• Display notices to public/service users
• Train managers not to ignore complaints
• Generally put in place your “reasonable steps” defence
Protecting employees from harassment
Unfair Dismissal
Humour and the band of reasonable
responsesHow far will the band stretch?
Unfair Dismissal
The caseBowater v Northwest London
Hospital Trust
(2011) EWCA Civ 63
Unfair Dismissal
The Facts
Unfair Dismissal
The “Lewd remark”…
“It’s been a few months since I’ve been in this position”
Unfair Dismissal
Legal issues arising
• ET found unfair but overturned by EAT
• CA reversed decision
• The “elastic band”
• “majority of public” would have found funny
• ET must not substitute their own opinion
Unfair Dismissal
Comment
This case may signify the return of an element of pragmatism to the ET, and an abatement of po-faced political correctness.
Unfair Dismissal
Investigation, Investigation, Investigation…..
Can there ever be too much?
Unfair Dismissal
The Case
Salford Royal NHR Foundation Trust v Roldan (2010)EWCA Civ
522
Unfair Dismissal
The facts
Unfair Dismissal
Legal issues arising
• The more serious the consequences of the dismissal the more investigation required
• Where consequences are very serious may have to give benefit of doubt to the employee
• Principles in A v B EAT 2003 IRLR 405 developed further
Unfair Dismissal
Comment/Practical tips
• Make sure you have a thorough audit trail of investigation
• If in doubt, investigate further
Unfair Dismissal
“You must be poking!”
Issues around social networking
Unfair Dismissal
The case
Gill v SAS Ground Services UK Limited ET/2705021/09
Unfair Dismissal
The facts
Unfair Dismissal
The legal analysis
• Social networking issues are tricky and relatively new
• Balance to be struck between respective rights of employee and employer
• Consider what are legitimate concerns• Put in place appropriate policies to guide
staff
Unfair Dismissal
Issues in relation to representation at internal
hearings
Unfair Dismissal
Hand holding…
Unfair Dismissal
The case
Governors of X School v R
Unfair Dismissal
The facts
Unfair Dismissal
The legal analysis
• Article 6 ECHR gives right to a fair trial
• Directly enforceable against state employees
• Tribunal must make decisions taking HRA into account
• Must be more than just losing “job”
Unfair Dismissal
Comment/Practical tips
• Be prepared to be flexible• Remember duty of reasonable adjustment
(EA 2010)• Legally qualified reps only where career is
at stake (FSA, social worker, doctor etc)• Be wary of troublesome spouses and over
protective mothers
Unfair Dismissal
Religious Discrimination
Unfair Dismissal
Case law developments
• Employment Equality (Religion and Belief) Regulations 2003 are now part of the Equality Act
• Slow start with claims
• Now on the increase – over 20% increase in 2010
Unfair Dismissal
Good news and bad news for employers
Unfair Dismissal
Bad news(but good news for
witches, UFO geeks and Swampy!)
The breadth of beliefs covered under the Regulations is
increasing beyond belief (!)
Unfair Dismissal
Good News
The Courts appear to be recognising the distinction
between holding a protected belief per se and the manner in which
that belief is manifested
Unfair Dismissal
Some cases
Believe it or not……
Unfair Dismissal
The case
Power v Greater Manchester Police Authority EAT 0087/10
Unfair Dismissal
The Facts
Unfair Dismissal
The legal analysis
The EAT found “his beliefs were worthy of respect in a democratic society, and had sufficient cohesion and cogency to be a philosophical belief under the Regs”
Unfair Dismissal
Legal analysis…
EAT used the five key characteristics identified in Grainger v Nicholson setting out what a philosophical belief must have if it is to be protected
Unfair Dismissal
Grainger v Nicholson•Genuinely held•Not an opinion or viewpoint•Related to a substantial aspect of human life and behaviour•Cogent, serious, cohesive and important with a similar status to religion•Worthy of respect in a democratic society without conflicting with the fundamental rights of others
Unfair Dismissal
He failed at the second hurdle – see Daily Mail
reports
Unfair Dismissal
Comment/Practical tip –Call Ghostbusters
Unfair Dismissal
The Thrill of the Chase
Unfair Dismissal
The Case
Hashman v Orchard Park Garden Centre
Unfair Dismissal
The Facts
Unfair Dismissal
The Legal Analysis
ET found on 11.3.11 that “(he) had established that (his) beliefs in the sanctity of life and the moral duty to avoid unnecessary suffering to animals constituted a philosophical belief for the purpose of protection under the Equality Act “
Unfair Dismissal
Manifestation of beliefThe foregoing cases establish the right to hold a belief is absolutely protected but recent case law has demonstrated that the manifestation of that belief is not afforded the same level of protection
Unfair Dismissal
The Cases
• Ladele v LB of Islington and anor 2010 ICR 532
• Rao v University Hospitals of Leicester NHS Trust 1901029/09
Unfair Dismissal
Comment
• Victory for common sense?• Recognition of mismatch between holding
a belief and carrying out of duties• Latter has to prevail• Religion/belief prevents performance of
duties = less favourable treatment not on grounds of religion/belief
Unfair Dismissal
Religious iconography or clothing
• Well publicised area• By and large it will be (generally indirect)
discrimination to prohibit the display of religous iconography or clothing where it does not impede one’s duties.
• Fine lines often need to be drawn – see following cases
• Chaplin v Royal Devon & Exeter NHS Foundation Trust 1702886/09
• Germain v Home Office 2306431/06
Religious iconography or clothing
Consider……..
Religious iconography or clothing
Sexual orientation discrimination
Case law developments
• Cases involving services have dominated the headlines
• Employment related claims still on the increase by 18%
• Two cases of interest ….
Sexual orientation discrimination
The Cases
• HM Land Registry v Grant 2010 IRLR 583
• Facts
• Practical tip! Policies should emphasise need for discretion and potentially harmful effects of gossip
Sexual orientation discrimination
• Job Centre Plus v McCarthy EAT 0419/09
• Facts
• Practical tip! Consistency with investigations/disciplinary sanctions where dealing with employees with protected characteristics
Sexual orientation discrimination
Protecting employees from harassment by customers/service users /third parties
S 40 Eq A• S40 extends liability of employers for persistent
harassment of employees by third parties (previously only applied to sex discrimination)
• “persistent” amounts to “at least two occasions”• Doesn’t have to be the same person• Remedies are the same as for all other forms of
discrimination
Protecting employees from harassment
S 40 EqA – Practical tips
• Put policies in place
• Display notices to public/service users
• Train managers not to ignore complaints
• Generally put in place your “reasonable steps” defence
Protecting employees from harassment
Recommended