Employment Law Update DORSET

The Equality Act 2010Allison Grant & Emma Ladley

Introduction

- Discrimination law in Great Britain has developed piecemeal over about 40 years

- The Equality Act replaces nine laws and more than 100 other measures to try and make it easier for employers to offer equal opportunities

- June 2007 ‘A Framework for Fairness: Proposals for a single Equality Bill for GB’ (Green Paper). 3 key policy objectives:

- Harmonising and simplifying the law- Making the law more effective- Modernising the law

Introduction

– The Equality Act received Royal Assent on 8 April 2010

– Main provisions are now in force

– Combined discrimination provision and equality duties are not scheduled to come into force until April 2011

– Private sector gender pay reporting provision not until 2013, if at all

– Subject to review by the new Coalition Government?

What has been said?

– “…easier for firms to comply with anti-discrimination rules…” (Equalities Minister Theresa May)

– “Everyone is protected by the new law… Under the Act people are not allowed to discriminate, harass or victimise another person because they belong to a group that the Act protects, they are thought to belong to one of those groups or are associated with someone who does…” (The Equality and Human Rights Commission)

– “Businesses are really concerned … this is going to cost £190 million just for businesses to understand the legislation, and this is at a time when we really need them to be concentrating on creating private sector jobs and driving economic recovery” (British Chamber of Commerce)

What has been said?

– “Equality Act ‘barking mad’” (Radio 4 - Today)

– “The TUC welcomes the Government's commitment to implement the Equality Act on 1 October 2010. The TUC campaigned for many years for a single Act to simplify discrimination law and make it easier for workers and employers to understand. The Act also includes some new measures to promote equality and we hope it will be commenced in its entirety” (TUC General Secretary Brendan Barber )

The Equality Act 2010

- Brings together and re-states the outgoing discrimination legislation concerning sex, race, disability, sexual orientation, religion or belief, and age

- Consistency and clarity over how employees and job applicants are

protected against incidents of discrimination in the workplace.

- Makes a number of important changes to the law

- An important opportunity and impetus for employers to look at their existing practices and policies

Do I need to think about discrimination differently? Not Really:

– In general the Act is consolidating existing law– The new single set of rules should in theory be easier to understand

and apply in practice – There are a number of technical amendments and standalone

provisions of which you need to be aware

Yes:

– Goes a lot further than consolidating existing law– Extends the reach of protection for employees. For example, there

are provisions making an employer liable for harassment of staff by customers

Do I need to think about discrimination differently? Yes:

– Secondary objective - strengthen discrimination law and promote equality in the workplace; a number of measures designed to meet this objective may take some employers by surprise. For example, the Act for the first time introduces restrictions on asking job applicants about the state of their health during the recruitment process. The protection afforded to disabled applicants and employees in the workplace has also been subtly but significantly strengthened through revisions included in the Act, which will arguably result in a greater number of these claims succeeding

– Tribunals power to make recommendations

Protected Characteristics– Age– Disability– Gender Reassignment – Marriage and Civil Partnership– Pregnancy and Maternity– Race– Religion or Belief– Sex– Sexual Orientation

Main areas employers must get to grips with

1. There are a number of technical amendments and standalone provisions of which you need to be aware:

– "associative" and "perceived" discrimination will be unlawful – Direct disability discrimination, discrimination arising from disability

and an entirely new concept of indirect disability discrimination– Tribunals have the power to make recommendations that benefit

the wider workforce. No enforcement regime against an employer who has failed to implement a recommendation, but subsequent claimants are sure to ask questions about recommendations and whether they have been acted upon.


- The possibility of such wide recommendations may give a claim a value far exceeding the financial exposure of the particular claim.

2. Positive discrimination in recruitment

– Proportionate measures to hire someone from an under-represented group provided they are equally qualified

– Exercise caution - unsuccessful applicants may argue more qualified than the successful applicant

– Use of this right by employers is likely to be limited


3. Ban on pre-employment health questions

– Restriction on employer’s ability to raise enquiries about disability and health of applicant

– Exceptions:

– Reasonable adjustments duty for the selection process– Ability to carry out a function intrinsic to the job – Monitoring diversity amongst applicants – Positive action– Requirement for a disability


4. Pay gagging clauses

– Do you restrict employees from discussing their pay?– If an employer has restrictions on pay discussions in either their

employment contracts or alternatively in pay review letters when these are issued (for example) then they should be aware of the impact of the Act

– Clause unenforceable where the employee wishes to have a “relevant pay discussion” – a discussion with a current or former colleague to establish whether there is a connection between their pay and any protected characteristic, for example their sex


5. Dual discrimination

– ability for applicants, employees and ex-employees to bring a 'combined discrimination' claim

6. Harassment

– an employer can now be liable for harassment of an employee, in the course of their employment, by a third party - if the employer has failed to take such steps and would have been reasonably practicable to prevent the third party from doing so

7. Ensure new definitions are communicated to staff and train Managers and Supervisors

Other areas to be aware of

8. Equal pay

9. Positive action

10. Socio economic duty on certain public bodies

11. Pensions

Discrimination – some definitions

Direct Discrimination

– A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others

– Associative and perceptive discrimination


Indirect Discrimination

– A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s


Victimisation

– A person (A) victimises another person (B) if A subjects B to a detriment because B does a protected act, or A believes that B has done, or may do, a protected act

– Protected acts:

– Bringing proceedings under the Equality Act– Giving evidence or information in connection with proceedings

under the Equality Act– Doing any other thing for the purposes of or in connection with

the Equality Act– Making an allegation (whether or not expressed) that A or

another person has contravened the Equality Act


Harassment

– A person (A) harasses another (B) if - – A engages in unwanted conduct related to a relevant protected

characteristic &– the conduct has the purpose or effect of -

– violating B's dignity, or– creating an intimidating, hostile, degrading, humiliating or

offensive environment for B

– Association and perception

Harassment by a Third Party

– Employer liable for harassment of an employee, in the course of their employment, by a third party - if employer…

– Knows it is happening– Harassment on at least two occasions– Failed to take reasonably practicable steps to prevent it

– NB. Third party can be the same or different party on each occasion.

Should I be making any changes to my policies and procedures? – Yes, but only in relation to certain areas. On the whole the Act

consolidates the existing separate equality legislation, bringing it together and aligning all protected characteristics and types of discrimination.

– There are, however, some changes which employers should be alive to, to ensure that their HR departments are up to date in preparation for main provisions of the Act coming into force in October 2010, 2012 and 2013.

Key changes to be reflected in amended policies and procedures

– Reformatting the different heads of disability discrimination to include direct, indirect and discrimination arising from disability

– Removing the list of capacities used to determine disability

– Extending the definition of direct discrimination of all types to include associative and perceptive cases

– The ability for applicants, employees and ex-employees to bring a 'combined discrimination' claim

– The limitation of the use of pre-employment health questions

– Limiting the enforceability of contractual 'pay secrecy' clauses – Other changes covered by the ‘Action Points’

Action points – Equal Opportunities Policy

– If you do not have a policy in place, you should seriously consider introducing one

– a useful way to set out required standards to govern the employment relationship and remind staff at all levels of their obligations

– It sends a positive message to the workforce that discrimination will not be tolerated and discriminatory behaviour will not be accepted

– Does this policy reflect the definitions of discrimination being introduced by the Act?

– Are all the protected characteristics covered?

Action Points - Anti-Harassment & Bullying Policy

– an employer can now be liable for harassment of an employee, in the course of their employment, by a third party - if the employer has failed to take such steps and would have been reasonably practicable to prevent the third party from doing so

– Review your anti-harassment procedures to ensure staff are aware

of how they can report any harassment and that you can show you are taking reasonably practicable steps to prevent such harassment from occurring. Consider extending this policy to third parties who come in to contact with your staff, such as visitors and contractors

– Steps to reduce the risk of third party harassment. For example, could you display signs or notices around the workplace to advise customers or clients that harassment of staff will not be tolerated, or to communicate details of your anti-harassment procedure

Action Points - Disability Discrimination and long term sickness

– Employers should review their current absence and disciplinary policies in addition to their capability procedures (if they have a separate procedure for this) to ensure that they are clearly aware of the procedure that will be followed in dealing with employees absent on long term sickness – must not amount to unfavourable treatment arising in consequence of the employee’s disability

Action Points – Recruitment Procedures

– Review your recruitment procedures and any application forms or pre-employment health questionnaires used to consider whether these comply with the exceptions to the restriction on enquiries regarding health and disability

Action Points – Pay Secrecy Clauses

– If you have pay secrecy clauses, review the use of these and consider removing them

Workplace stressAllison Grant

Workplace Stress

– What is workplace stress?

– Legal definition of stress?

– “By the term work related stress we mean the process that arises where work demands of various types and combinations exceed the person’s capacity to cope. Think of this as ‘bad work’. It is a significant cause of illness and disease and is known to be linked with high levels of sickness absence, staff turnover, and other indicators of organisational underperformance, including human error” (Health & Safety Executive)

Extent of the problem – IOSH 2009

Stress and related conditions:

– The second largest cause of work-related ill health

– The largest contribution to the overall estimated days lost from work

– 16.7% of people believe their jobs are extremely or very stressful

– 11.4 million working days lost

Extent of the problem - TUC

– TUC Report 2008 identified stress and excessive workloads as some of the major causes of dissatisfaction amongst workers

– 2008/09, an estimated 415,000 believed they were experiencing work related stress at a level that was making them ill

– 2008, annual incidence of work related mental health in UK was approx. 5,126 new cases per year

– 2008/09, an estimated 230,000 first became aware of work related stress, depression or anxiety, giving an annual incidence rate of 760 cases per 100,000

Extent of the problem – HSE & CIPD

– Stress is likely to become the most dangerous risk to business in the early 21st century (Health & Safety Executive)

– Three quarters of executives say that stress adversely affects their health, happiness and home life as well as their performance at work (Chartered Institute of Personnel and Development)

– One in five workers report feeling extremely stressed at work which equates to 5 million in the UK (Health & Safety Executive)

The law on stress – DUTY OF CARE

– Overriding responsibility of employers is that of a duty of care

– An understanding and awareness of the basic legal principles is not ‘rocket science’, and should be sufficient to have the employer monitor and manage stress

– No legislation in the UK that specifically deals with stress

– Statutes and case law make up recognised areas of law relevant to stress in the workplace, and the prospect at least that a breach of the law may give rise to a stress claim


Recognised areas of the law:

– Health & safety legislation (Health & Safety at Work Act 1974 and The Management of Health and Safety at Work Regulations 1999)

Imposes a duty to ensure the health, safety and welfare at work of all employees, which includes taking steps to ensure, so far as reasonably practicable, that employees do not suffer stress-related illness as a result of their work

– Common law duty to take care relating to negligence

Employers are under a common law duty to take reasonable care for the health and safety of employees. This duty arises under the common law relating to negligence, on which virtually all personal injury claims are based and extends beyond physical injury to psychiatric injury


– Employment protection legislation

Equality Act 2010

Protection from Harassment Act 1997

Court of Appeal decision that PHA did apply to employment relationships, and that employer could be held vicariously liable in respect of anxiety and distress suffered by employee through work place harassment (Marjowski v Guy’s & St Thomas’s NHS Trust [2006]).

– Employer owes a duty of care to protect employees from psychiatric injury as much as physical injury. Breach depends on:

(i) forseeability of injury

(ii) failure to take reasonable steps to avoid injury

– Relatively recent case law has addressed the duty of care, which in turn has impacted on what is expected from employers to not breach the law

Common Law – Significant Developments

Common Law – Significant Developments

Employers duty to take reasonable care for the health and safety of

employees in the workplace

– Walker v Northumberland CC [1995]

– Sutherland v Hatton [2002]

– Intel Corporation (UK) V Daw [2006]

– Dickins v 02 [2008]

Walker v Northumberland CC [1995]

"once a duty of care has been established, the standard of care required for the performance of that duty must be measured against the yardstick of reasonable conduct on the part of the person in the position of that person who owes the duty... it calls for no more than a reasonable response, what is reasonable being measured by the nature of the relationship, the magnitude of the risk of injury which was reasonably foreseeable, the seriousness of the consequence for the person to whom the duty is owed of the risk eventuating and the cost and practicability of preventing the risk."

Sutherland v Hatton [2002]

– This case did not change the law, it provided useful practical guidelines by the Court of Appeal on an employer’s common law obligations in relation to work place stress illness.

– The guidelines to assist employers include (‘the Hatton principles’):-

(i) The rules are the same whatever the job – there are no inherently stressful jobs

(ii) Employers need to be vigilant but are entitled to assume that an employee can cope with the normal pressures of the job unless they are aware of a particular vulnerability

(iii) Employers are entitled to take what an employee says at face value in most circumstances

Sutherland v Hatton [2002]

(iv) Once on notice of a potential stress related illness/vulnerability, the employer needs to take remedial steps

(v) Employers are unlikely to be found in breach of their duty if they offer a confidential advice service with referral to appropriate counselling or treatment (now a matter of some doubt due to more recent case law)

– Ruling had a mixed reception - lull employers into a false sense of security

– Best statement of general principle is that the overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know

Intel Corporation (UK) v Daw [2006]

– Employer was liable in negligence for its failure to take steps to reduce the workload of a stressed employee

– Employer offered short term counselling. Did not reduce the risk or reduce her workload. Court determined that the provision of a counselling service by an employer is not on its own enough to mean that he has discharged his duty of care - an employer's failure to act when he should do so is not excused simply by the provision of external help

– Made clear that each case will turn on its own facts and emphasised importance of dealing with employees in a reasonable way to prevent harm

Dickins v O2 [2008]

– Employer found liable for injury caused by occupational stress. Psychiatric injury found to be reasonably foreseeable

– ‘Hatton hurdles’ may not be so difficult for employees to surmount

– On facts court found that a confidential counselling service was insufficient to discharge O2’s duty of care

– Audit “extremely stressful”, requested less stressful job, repeatedly late for work, requested 6-month sabbatical as “stressed out”, advised to use counselling helpline

– Little unduly stressful about work, employee’s perception of the workload caused anxiety

PROACTIVE stance to stress in the workplace

– Employers are often overwhelmed by the volume of law in this area

– A reactive approach to stress management is risky and is often both ineffective and costly

– The best advice for employers is to take a proactive stance to stress in the workplace

Practical steps

– Identify the causes of stress and the level of risk to individuals and the organisation by carrying out risk assessments to highlight concerns and provide recommendations for action

– Introduce a stress management policy, take action to ensure the policy is known to employees, train managers and staff on it and monitor the effectiveness of such a policy

– Consider providing a confidential advice and counselling service

Practical steps

– Take certified sickness absence due to stress or depression seriously and inquire about the employee’s problems and what can be done to ease them

– Monitor employees who you know could be at risk of suffering from work related stress

– Where instances of stress do arise, take action at an early stage

Wellbeing Strategies

– GlaxoSmithKline – an employment health management team, holistic approach to managing overall health of employees, covering mental health and attendance management. Team includes health and resilience project leaders, role to design and implement healthcare programmes. Workplace injuries fallen by 40%

– BT – ‘Work fit’ vehicle for health promotion. Approach to stress and mental health focuses on: prevention, protection, and intervention. 30% reduction in mental health-related sickness and a return-to- work rate of 75% for people absent for more than six months with mental health problems

Wellbeing Strategies

– Burnley Borough Council – Formed a well being group, which carries out several initiatives as part of a wellbeing strategy. Projects included:

(i) developing a ‘Be well’ handbook(ii) running a stress awareness week(iii) revising or introducing policies to include managing attendance, stress, performance management and flexible retirement(iv) providing managers with risk assessment training(v) running stress management workshops

Reduction in days lost to stress per employee, from 3.35 in 2006/07 to 2.55 in 2007/08

Microsoft

– In 2008 Microsoft announced it had applied for a patent to use wireless infra-red sensors to monitor changes in workers heart rates, blood pressure, body temperature, and facial expressions, to tell how stressed and frustrated they are

– Ridiculed by UK private and public sectors:

– “HR gone bonkers” (G Hibberd, Corporate Director for people and policy at Buckinghamshire CC)

– “Intrusive software” (CIPD)

– “You cannot reduce identifying or managing stress to just a few medical readings” (E Bridges, Personnel Director, Royal Opera House)

Managing Employees in a Challenging Economic Environment

Catharine Geddes &

Emma Ladley

Introduction

- Staff concerns about security of employment

– Problems?

– How do I manage my workforce?

– Are there any alternatives to Redundancy?

Managing people and your approach

– Problem: Stress = poor productivity– Encourage employees to work with you to create

work plans and increase contribution– Problem: Employees expected to do more with

less resources– Ensure your workplace feels like an equitable

place– Effective management and management

practices

Challenges

– Challenges can be positive – Use challenges as opportunities– Communication is key for a positive morale– Remember informal communications are

valuable!

Redundancy

– Do you have a policy?– 2 aspects to a fair redundancy dismissal:

– Genuine redundancy situation– Fair procedure

– Alternatives?– Selection criteria. Consider whether you need a

pool and what criteria you will use.– Consultation process

Redundancy (2)

– In the individual consultation discuss:– Why are you making redundancies?– Selection criteria– How were these criteria applied– Why the position has been selected for redundancy– The terms on which any redundancy would take place– Alternative employment in the organisation– Any ideas the employee might have to avoid

redundancy or why they should not be selected

Alternatives to Redundancy?

– Redundancy may NOT be the only option– Redundancy can be very costly– Review your business needs and then make a

decision– What are the alternatives? Examples include:

– Reducing employee headcount– Temporary work stoppages– Reduction in work and output– Pay reductions

Reducing headcount

– Recruitment freeze– Not usually employment law implications

– Withdraw employment offers– Only before acceptance

– Reducing agency, temporary or casual staff– Look carefully at whether the individual is an

employee or worker– Comply with all obligations towards the agency

Voluntary Retirement

– Consider effect on individuals’ pension entitlements

– Shadow Redundancy – in return for a pay package?

– Give the employee a genuine choice– Should these employees be included in count for

redundancies?

Temporary Stoppages

– Short term solution– Retain full workforce for the future– Sabbatical– Holidays– Lay offs

– Selection process? – Consider financial implications for employees– Only lay off for as long as necessary

Reducing Hours

– Employees’ consent needed– Permanently or temporarily– Financial impact of cuts – explain your reasons– Claims for redundancy possible

Part time and flexible working

– Offer part time or flexible work to more employees

– Consider limiting arrangements– Terminate arrangements by notice, giving you

more flexibility

Reducing Remuneration

– Long term improvements if your employees take a cut now?

– Salary sacrifice in return for a benefit– Changes in terms and conditions: if you don’t

have an express clause, you will need consent– Risks– Pay cut will have a huge impact on motivation –

again make sure you communicate effectively as to your reasons behind this change

– Cuts of discretionary benefits?

Conclusion

– Consider all options, not only redundancy– Clarify your strategy and communicate your

goals to employees– Keep employees engaged and committed to

your organisation– Be transparent and open– Training programmes will pay off– It will improve!

Contact us

Emma LadleySolicitor01202 786207 [email protected]

Allison Grant

Partner

020 7400 9810

[email protected]

Catharine GeddesAssociate01202 786148 [email protected]