Tag Archive: discrimination

Supreme Court ends employment tribunal fees with immediate effect

Employment tribunal fees were introduced for the first time in July 2013, and have been subject to challenge ever since. Over the course of the last 4 years, UNISON has launched two judicial reviews, both of which were unsuccessful in the High Court.  In 2015, UNISON’s appeal to the Court of Appeal failed.   Leave to appeal to the Supreme Court was granted and, following a two day hearing earlier this year,   this long running saga finally ended today when the Supreme Court decided to unanimously uphold UNISON’s appeal.

UNISON had asserted, and the Supreme Court agreed, that the 2013 statutory instrument implementing employment tribunal fees (the Fees Order) is unlawful for three reasons:-

  • First, it restricts the right of individuals to be permitted access to justice. Such a restriction is only lawful if it can be shown to be a proportionate means of achieving a legitimate aim, a test which, the Supreme Court decided that employment tribunal fees do not satisfy.
  • Second, the Order is inconsistent with the primary legislation under which it is implemented and frustrates Parliament’s intention both to provide individuals with substantive employment rights and to provide an accessible and affordable venue in which to enforce those rights.
  • Third, the fees regime discriminates directly against women and there is no objective justification for this discriminatory effect.

Largely the arguments at the Supreme Court centred on whether or not the fees regime could be objectively justified.  That is to say, whether or not the regime pursued one or more legitimate aim and if the regime was a proportionate means of achieving those aims.  The Government’s aims in introducing fees included transferring a portion of the costs of the tribunal service to end users and encouraging people to use alternative services to resolve disputes. Although the Court accepted that these aims were legitimate, it fully upheld UNISON’s contentions that the regime was disproportionate. The Court found that the level of fees under the regime has acted as a deterrent to claims and imposed an unjustifiable intrusion into access to justice. As such, the Court declared the regime unlawful under both UK and EU law.

What happens next?

  • As a result of its decision, the Supreme Court has quashed the Fees Order, which means that, with immediate effect, fees will no longer be chargeable for claims in employment tribunals.   Naturally, this is likely to lead to a rise in the number of disputes between employers and employees which reach the employment tribunal.
  • The Government had previously given an undertaking to repay all fees paid under the regime from its July 2013 implementation date if the fees regime was subsequently found to be unlawful. The Supreme Court confirmed today that this undertaking will now be fulfilled.
  • Although this cannot be predicted with any certainty, it is possible that the Government may, in future, seek to implement a revised fee regime which takes account of the need for proportionality.     Given the outcome of the Supreme Court case, the Government may prefer to implement any new regime via an Act of Parliament, rather than using an Order.  This would, of course, require the regime to be debated and approved by Parliament; a process which would be likely to affect the shape of any new regime.

Update – 18 August 2017

On 18 August 2017, the Presidents of the Employment Tribunals in England/Wales and Scotland issued further case management orders lifting, with immediate effect, the stay (sist, in Scotland) on all claims or applications brought to the employment tribunal in reliance on the decision of the Supreme Court in R (on the application of Unison) v Lord Chancellor (Unison case).

Applications for reimbursement of fees, or for the reinstatement of claims rejected, or dismissed, for non-payment of fees, will now need to be made in accordance with administrative arrangements to be announced by the Ministry of Justice (MoJ) and Her Majesty’s Courts and Tribunals Service (HMCTS) shortly.  All other claims will proceed to be considered judicially in the usual way.

According to the Explanatory Notes to the Orders, the Orders have been made on the basis that the intentions of the MoJ and HMCTS in relation to the practical implications of the Unison case have become clearer and that it is expected they will be making an announcement in relation to the relevant administrative arrangements shortly – as a result, it is apparent that the reimbursement of fees and the reinstatement of rejected, or dismissed claims, for non-payment of fees will be dealt with administratively and almost certainly without the need for judicial intervention or judicial decision.

For now, therefore we must await details of the administrative procedures which will apply.   Reports suggest, however, that details of the refund scheme will not be published until September.

Update – 9 August 2017

By way of update, on 9 August 2017, the President of the Employment tribunals issued Case Management Orders ordering that all claims or applications brought to the Employment Tribunal in England, Wales and Scotland in reliance upon the decision of the Supreme Court in R (on the application of Unison) v Lord Chancellor  will  be stayed (sisted, in Scotland) to await decisions of the Ministry of Justice (MoJ) and Her Majesty’s Courts and Tribunals Service (HMCTS) in relation to the implications of that decision.  Anyone who wishes to make representations in relation to the further conduct of these claims or applications is ordered to apply to the Regional Employment Judge for the relevant Employment Tribunal region or, in Scotland, to the President of Employment Tribunals (Scotland).

The impact of these Orders appears wide enough to  include applications for refunds of fees and claims that were rejected or dismissed because fees were not paid. It may also cover new claims which had not been brought previously because of fees and in which an extension of time is now sought.  However, the Orders’ Preamble do have regard to rules 11 and 40 of the Employment Tribunals (Constitution and Rules of Procedure)  Regulations 2013 which relate to rejection or dismissal of claims for non-payment of fees (or absence of remission) which suggests that the scope of the Orders may be limited to reinstatement of claims that were previously struck out or dismissed for non-payment of fees.  We must now await the decisions of the MoJ and HMCTS.

 

Permanent link to this article: http://www.dlapiperbeaware.co.uk/supreme-court-ends-employment-tribunal-fees-with-immediate-effect/

Scope for ban on Islamic headscarves in the workplace remains limited

The European Court of Justice has decided that an internal rule which prohibits the visible wearing of any religious sign does not constitute direct discrimination based on religion or belief. Although such a rule might constitute indirect discrimination, it may be objectively justified.

Facts

Ms Achbita (A) was employed, in Belgium, as a receptionist by G4S and was involved in providing reception services for customers.  At the time of A’s recruitment there was an unwritten rule within G4S prohibiting employees from wearing visible signs of political, philosophical or religious belief in the workplace.   When A informed her employer that she intended to wear an Islamic headscarf at work,  she was told not to as this was contrary to the position of neutrality adopted by G4S in its contact with customers.    Shortly after, the G4S works council approved a change to the workplace regulations which provided that ‘employees are prohibited, in the workplace, from wearing any visible signs of their political, philosophical or religious beliefs and/or from engaging in any observance of such beliefs’. A was dismissed because she insisted on wearing the Islamic headscarf at work. She challenged her dismissal in the Belgian courts, which referred the matter to the ECJ.

Ms Bougnaoui (B) worked at Micropole, in France, initially as an intern and then as an employee. Before the start of her internship,  she was told by a representative of the employer that wearing an Islamic headscarf at work might pose a problem when she was in contact with customers.   B did wear an Islamic headscarf at work. Following a complaint from a customer to whom B had been assigned, Micropole reaffirmed the principle of the need for neutrality as regards its customers and asked B not to wear the veil in future. B objected and was dismissed. She challenged her dismissal in the French courts, which referred the matter to the ECJ.

The ECJ considered both cases together.

G4S decision

The Court decided that, as G4S’s internal rule refers to the wearing of visible signs of political, philosophical or religious beliefs, it covers any manifestation of such beliefs without distinction. All employees are treated in the same way and are required, generally and without differentiation, to dress neutrally.   There was no evidence that the internal rule was applied differently to A as compared to other G4S employees.

The Court concluded, therefore, that the rule is not directly discriminatory as it does not introduce a difference of treatment that is directly based on religion or belief.

The Court also considered the issue of indirect discrimination. It found that the employer’s internal rule could be indirectly discriminatory if the obligation it imposes, although apparently neutral,  in fact results in persons of particular religion being put at a particular disadvantage. Such indirect discrimination may, however, be objectively justified by a legitimate aim, provided that the means of achieving that aim are appropriate and necessary.

In terms of G4S’s rule, the ECJ gave guidance on the matters that the Belgian court should consider when assessing objective justification. According to the ECJ –

  • the pursuit by the employer, in its relations with its customers, of a policy of political, philosophical and religious neutrality is a legitimate aim, notably where the only workers involved are those who come into contact with customers;
  • the ban on the visible wearing of signs of political, philosophical or religious beliefs is appropriate for the purpose of ensuring that a policy of neutrality is properly applied, provided that that policy is pursued in a consistent and systematic manner;
  • the Belgian court will have to ascertain whether the prohibition covers only G4S workers who interact with customers. If that is the case, the prohibition must be considered strictly necessary for the purpose of achieving the aim pursued; and
  • the Belgian court should also ascertain whether it would have been possible for G4S to offer A a post not involving any visual contact with customers, instead of dismissing her.

Micropole decision

The ECJ decided that the willingness of an employer to take account of the wishes of a customer no longer to have services provided by a worker wearing an Islamic headscarf cannot be considered to be a ‘genuine and determining occupational requirement’ for discrimination purposes.   The Court pointed out that there are very limited circumstances in which a characteristic related to religion can constitute a genuine and determining occupational requirement. This concept refers to a requirement that is objectively dictated by the nature of the occupational activities concerned or of the context in which they are carried out and does not cover subjective considerations, such as the employer’s willingness to take account of the particular wishes of the customer.

Comment

Although the decision of the ECJ does allow some scope for an employer to operate a dress code which requires religious neutrality,   in reality that scope is extremely limited.   Such a code is only possible where its use is in pursuance of a legitimate business aim and, further, it must be a proportionate means of achieving that aim.   Employers should also be aware that dress codes can give rise to risks of other types of discrimination, for example sex or disability discrimination. Practical points to consider in reviewing or implementing a dress code are –

  • Addressing why the dress code is necessary by identifying a legitimate aim;
  • Considering the scope of the code and what the justification is for its different elements;
  • Deciding whether employees or employee representatives should be consulted about the code;
  • Ensuring that the code is applied consistently and systematically across the business; and
  • Considering what flexibility might be allowed within the code, where exceptions might be possible and how any flexibility can be managed consistently across the business.

Permanent link to this article: http://www.dlapiperbeaware.co.uk/scope-for-ban-on-islamic-headscarves-in-the-workplace-remains-limited/

The ill-treatment of domestic migrant workers because of their immigration status does not amount to race discrimination under the Equality Act 2010

Bethan Odey and Emma Phillips, Senior Associates in our Birmingham office, comment: The recent case of Taiwo v Olgaigbe and another; Onu v Akwiwu and another [2016] UKSC 31 has highlighted the issues which can arise in respect of the employment rights of migrant workers. The case involved Ms Taiwo and Ms Onu, both Nigerian nationals who entered the UK lawfully with a domestic worker’s visa. Ms Taiwo and Ms Onu were subjected to mental and physical abuse, paid less than the minimum wage and denied the required rest periods. Eventually, Ms Taiwo and Ms Onu fled their employers and later brought employment proceedings against them.

In Ms Taiwo’s case the tribunal upheld her claims for unlawful deduction of wages, failure to provide the required rest periods and failure to provide written terms of employment. However, the tribunal dismissed her claims for direct and indirect discrimination under the Equality Act 2010. In Ms Onu’s case the tribunal upheld the same claims, but also held that Ms Onu had been constructively and unfairly dismissed, and that she had been directly discriminated against on the grounds of race.

The two decisions were appealed. The EAT dismissed Ms Taiwo’s appeal and upheld Ms Onu’s employer’s appeal, stating there had been no direct or indirect discrimination. The appeals were then heard jointly in the Court of Appeal where the decisions of the EAT were upheld. The decision of the Court of Appeal was itself appealed to the Supreme Court where it was held unanimously that the treatment of the two employees did not amount to direct or indirect discrimination.

The counsel for the employees conceded that this was not a case of indirect discrimination, which in the Supreme Court’s opinion supported the view that that the mistreatment was not because of the employees’ race but for other reasons. The Supreme Court considered that Parliament could have chosen to include immigration status in the list of protected characteristics, but it chose not to. Although immigration status is a “function” of nationality, the reason why the employees were treated so badly was because of their particular vulnerability arising from their immigration status. It had nothing to do with the fact that they were Nigerian.

The Supreme Court went one step further and advised that Parliament may wish to address whether the remedy provided by section 8 of the Modern Slavery Act, which introduced rules regarding supply chain transparency for organisations, is too narrow and whether the jurisdiction of an employment tribunal should be expanded to allow them to grant compensation for the ill-treatment handed out to employees such as Ms Taiwo and Ms Onu. It seems that without this change, vulnerable migrant workers will continue to be denied sufficient remedy for any grievous harm they may suffer. The new Prime Minister has since confirmed that a new UK cabinet taskforce will address violations of the Modern Slavery Act, £33.5 million will be provided in official development assistance funding and further powers have been granted to law enforcement bodies in respect of modern slavery at sea. The judgment in this case also highlights the importance of having in place correct right to work visas as, should a claim be brought by a migrant worker, this will highlight, in a public tribunal hearing, any deficiencies in respect of right to work documents.

Permanent link to this article: http://www.dlapiperbeaware.co.uk/the-ill-treatment-of-domestic-migrant-workers-because-of-their-immigration-status-does-not-amount-to-race-discrimination-under-the-equality-act-2010/

Corporate body can bring claim for associative discrimination

In EAD Solicitors LLP and others v Abrams the EAT held that a limited company can bring a claim that it has been directly discriminated against where it suffers detrimental treatment because of the protected characteristic of someone with whom it is associated.

Mr Abrams was a member of a limited liability partnership (LLP). As he approached retirement for tax reasons he set up a limited company of which he was the sole director. The company took his place in the LLP and he withdrew from membership. The limited company was entitled to receive the profit share Mr Abrams would have received as a member and it agreed to supply the services of an appropriate fee earner to the LLP; it was expected that this would be Mr Abrams but there was no obligation in this regard. Mr Abrams was therefore neither an employee or a worker and had no contractual relationship with the LLP.

When Mr Abrams reached the age at which it had been agreed he would retire had he remained a member of the LLP and the LLP objected to the limited company remaining a member of the LLP and supplying Mr Abrams’ services. Mr Abrams and the limited company brought an age discrimination claim and as a preliminary issue the tribunal had to consider whether the limited company could bring a claim under the Equality Act 2010. The tribunal held that it could and on appeal the EAT upheld this view.

The LLP sought to argue that as only an individual can have a protected characteristic, only an individual can bring a discrimination claim. The EAT rejected this argument, pointing out that the Equality Act does not deal with individuals on the basis of their protected characteristics but identifies discrimination as being detrimental treatment caused by the protected characteristic or related to it. Such detrimental treatment can be given to any person, whether natural or legal, and if it is because of a protected characteristic, it can form the basis of a discrimination claim. The person suffering the detriment need not be capable of having a protected characteristic. There is nothing in the wording of the Equality Act to prevent a corporation bringing a discrimination claim.

The EAT gave a number of examples of ways in which a corporation might suffer such detrimental treatment because of the protected characteristic of another individual, including a company being shunned commercially because it employs a Jewish or ethnic workforce, a company that loses a contract or suffers a detriment because of pursuing a Roman Catholic ethic, one that suffered treatment because of the openly gay stance of a chief executive. Most of these circumstances will arise in the field of the provision of goods and services rather than employment but it is clear that this decision opens up the potential for liability for discrimination in areas which may not previously have been considered. The case is believed to be the first discrimination case brought by a company and could lead to more corporate bodies bringing discrimination claims in the employment tribunal or in the civil courts for refusal to supply or purchase goods or services (or only doing so on disadvantageous terms) because of the age, ethnicity, gender, sexual orientation, religion or belief of the people who run the disadvantaged company.

Permanent link to this article: http://www.dlapiperbeaware.co.uk/corporate-body-can-bring-claim-for-associative-discrimination/

Obesity can be a disability, ECJ confirms

Ben Gorner, a Partner in our Birmingham office, comments: As we reported in Be Aware on 1 July and 18 July, the ECJ was recently asked in the case of Kaltoft v Kommunernes Landsforening to consider whether obesity should be regarded as being a disability for the purposes of disability discrimination. The case concerns an overweight Danish childminder, Karsten Kaltoft, who was sacked by his employer (the local authority) allegedly because the employer thought that he could not perform his duties due to his weight. Mr Kaltoft brought a disability discrimination claim. The Danish courts referred the question to the ECJ whether obesity should be regarded as a disability.

Today the ECJ handed down its judgment and confirmed that, whilst there is no general principle prohibiting employers from discriminating on grounds of obesity in the labour market, obesity can be a disability covered by the protection against disability discrimination. This will be the case if the obesity entails a long term limitation which results in particular from physical, mental or psychological impairments that, in interaction with various barriers, may hinder full and effective participation of the person concerned in professional life on an equal basis with other workers. Such would be the case, in particular, if the obesity of the worker hindered participation in professional life due to reduced mobility or the onset of medical conditions preventing that person from carrying out work or causing discomfort when exercising professional activity.

It is for the national court to determine whether a particular claimant’s obesity falls within the definition of ‘disability’. The ECJ specifically did not adopt the threshold indicated by the Advocate General’s opinion of ‘severe’ obesity, which refers to morbid obesity, meaning a BMI of 40 or more (around 21 stone for an average height man). This must be the correct approach, since what is relevant is not the employee’s weight as such but the impact it has on their day-to-day activities, but it will raise familiar issues for employers determining whether particular employees are disabled or not.

The ECJ’s decision will have implications for both employers and service providers particularly in relation to the duty to make reasonable adjustments.  The decision does not, in fact, substantially increase the ambit of discrimination law in the UK. The Equality Act 2010 has already been interpreted as protecting employees who suffer from physical and mental conditions which result from obesity (in the 2012 EAT case Walker v Sita Information Networking Computing Ltd), but as in the ECJ, obesity has been rejected as a disability in its own right by the UK courts. However, the clear articulation by the ECJ that obesity may constitute a disability is likely to lead to more claims, and the impact of the ECJ’s decision could prove substantial for UK employers. The UK has one of the highest percentages of obesity in Europe; 64% of adults are classified as being overweight or obese. Employers may now be prevented from treating some employees less favourably or dismissing some obese employees because of their weight. The most important impact, however, will almost certainly arise in the context of the employer’s duties to make reasonable adjustments to the workplace or working arrangements. Employers may be expected to provide specialist equipment or furniture, parking or other travel assistance and adjustments to sickness absence policies. Employers will need to consider their responsibilities towards obese workers whose weight impacts on their ability to participate in the workplace.

Permanent link to this article: http://www.dlapiperbeaware.co.uk/obesity-can-be-a-disability-ecj-confirms/

Failure to enhance paternity pay not discriminatory

In Shuter v Ford Motor Company, an employment tribunal has held that a male employee was not discriminated against when he received only statutory pay during a period of additional paternity leave (APL) whereas a female employee on maternity leave would have received full pay for up to 52 weeks.   Although only a first instance decision which will not bind other tribunals, this case nonetheless serves as a useful reminder to employers that they need to decide an approach to the incoming system of shared parental leave (SPL) and, in particular, to address the thorny issue of whether the benefits of an enhanced maternity scheme should be mirrored for those on SPL.

Facts

Under Ford’s family leave policies,  employees on maternity leave are entitled to occupational maternity pay at the rate of 100% for the whole leave period and employees on the two weeks of ordinary paternity leave are also entitled to 100%.   APL was a new type of family leave which took effect in relation to children born after 3 April 2011;   where the mother returns to work and ends her maternity leave,  the child’s father or the mother’s spouse/civil partner can then take between two and 26 weeks’ APL.   At the time APL was introduced,  Ford reconsidered how it might structure its pay arrangements for family leave.   Its decision was the retain 100% maternity pay and two weeks’ full pay for ordinary paternity leave but to pay only statutory pay for APL.   Among the reasons for this decision were –

  • The APL regime was likely to be temporary as the Government was already consulting on the introduction of SPL;
  • It was usual practice to initially adopt statutory minimum entitlements and then refine entitlements based on experience;
  • Paying APL at 100% would be costly and disruptive to the business given the make-up of Ford’s workforce;
  • 100% maternity pay had been introduced to enhance Ford’s ability to recruit and retain more female employees and assist its diversity targets.  A downwards equalisation of pay for maternity and APL would demotivate female staff; negatively impact the reasons for implementing 100% maternity pay; and  risk litigation and negative publicity;
  • A recognition that APL and maternity leave are different as maternity leave is connected with the biological condition of pregnancy and childbirth and facilitates the special relationship between mother and child;
  • The Government’s advice was that pay for APL did not need to be enhanced to mirror maternity pay and similar employers were not doing so;
  • Ford did not want to subsidise the less generous maternity benefits of other employers;
  • The current 2% take up of ordinary paternity leave was low; and
  • Other European companies in the Ford group did not offer such generous rights.

Ford was also able to provide statistical evidence to the tribunal which demonstrated the need to increase the number of women in its workforce; that an increase had been achieved; and also statistics on the take up of maternity and paternity leave within its workforce.

ET Claim

Following his wife’s return to work after maternity leave,  between July and December 2013,  Mr Shuter took a period of about five months’ APL from his employment with Ford.   He was paid at the statutory rate.  In October 2013,  Mr Shuter issued employment tribunal proceedings alleging both direct and indirect discrimination based on the difference in treatment by Ford of women on maternity leave and men on APL.   Had Ford’s maternity and APL pay policies been the same,  he would have received around £18,000 during his period of leave.

The employment tribunal decided that Mr Shuter had not been subject to either direct or indirect sex discrimination.   

In terms of direct discrimination,  Mr Shuter had sought to compare himself to a woman on maternity leave but the tribunal held that this was not the correct comparator.  Instead, Mr Shuter should be compared to a woman on APL who would, similarly, have received only statutory pay and, as such, there was no less favourable treatment.

In terms of indirect discrimination,  it was accepted that Ford had applied a practice of “paying women basic pay when on leave beyond 20 weeks after the birth of the child when looking after the child”.  It was also accepted that men were likely to suffer a group disadvantage from this practice given that the largest group eligible for APL are fathers.   However, the tribunal decided that Ford’s practice of paying full pay during maternity leave was justified;  its legitimate aim was to retain and increase the number of women in its workforce and its policy on maternity pay was a proportionate means of achieving that aim.

Implications

This is one of the first cases where a difference in pay for women on maternity leave and men on APL has been considered.   It is helpful for employers that, in a well-reasoned judgment, the tribunal found that there was no discrimination.   However,  businesses should not take this as an opportunity to breath a collective sigh of relief.    The decision is only at employment tribunal level so is not a binding authority and it may yet be subject to appeal.   In addition,  the case related to APL which will soon become a thing of the past when SPL comes into effect (for babies expected on or after 5 April 2015).    There are significant differences between APL and SPL including that, for example,  SPL can be taken from two weeks after the birth, rather than 20 weeks as is the case with APL,  and also that a mother and father can take SPL concurrently,  rather than consecutively as is the case with APL.    As such,  it is possible that the courts may reach a different decision when asked to consider a discrimination claim based on differences between maternity pay and pay for SPL.   

What this case is very helpful in demonstrating is the sort of detailed evidence an employer will have to provide in order to justify a decision to enhance maternity pay but not pay for SPL.  Cost alone is not an adequate reason and some additional justification will be required.   Here, Ford had carefully considered the issue when APL was introduced,  had reviewed various options and had identified sound business reasons for the decision to continue to enhance maternity pay only.     This is an exercise which employers who currently enhance maternity benefits will need to carry out before the SPL regime comes into effect and, in this regard, there is no time like the present!

 

Permanent link to this article: http://www.dlapiperbeaware.co.uk/failure-to-enhance-paternity-pay-not-discriminatory/

Obesity can be a disability: AG gives opinion in ECJ case

As we reported in Be Aware on 1 July, the ECJ was recently asked in the case of Kaltoft v Kommunernes Landsforening to consider whether obesity should be regarded as being a disability for the purposes of disability discrimination.

On 17 July the Advocate General gave his opinion in the case. The AG said that whilst there is no general principle prohibiting employers from discriminating on grounds of obesity in the labour market, severe obesity can be a disability covered by the protection against disability discrimination if it, in interaction with various barriers, hinders full and effective participation of the person concerned in professional life on an equal basis with other workers. By severe obesity the AG was referring to morbid obesity, meaning a BMI of 40 or more (around 21 stone for an average height man).  If an individual is classified as morbidly obese, they may be disabled if the obesity has a real impact on their ability to participate in work. 

This could have implications for both employers and service providers particularly in relation to the duty to make reasonable adjustments, if the ECJ takes the same view. We will be monitoring the case and will report further when the ECJ gives its judgment.

Permanent link to this article: http://www.dlapiperbeaware.co.uk/obesity-can-be-a-disability-ag-gives-opinion-in-ecj-case/

Testing the boundaries of disability discrimination

Guy Lamb, a Partner in our Leeds  office, comments: Two cases this month have raised questions as to how far the protection of disability discrimination law should extend.

 Reasonable adjustments

 In Hainsworth v Ministry of Defence, the Court of Appeal rejected an attempt to increase the scope of so-called associative discrimination. In Coleman v Attridge Law the EAT held that protection from direct disability discrimination should extend to employees who are associated with a disabled person. Protection from direct associative discrimination was subsequently extended to all protected characteristics in the Equality Act 2010. In Hainsworth the claimant (supported by the Equality and Human Rights Commission as interveners) sought to argue that the duty to make reasonable adjustments also ought to extend to employees who are associated with a disabled person. Ms Hainsworth was employed as a civilian teacher attached to the British armed forces and required to provide her services in Germany. She asked to be transferred to the UK in order that her daughter, who has Downs Syndrome, could receive specialist education. When her request was rejected she brought the claim for disability discrimination claiming that it would have amounted to a reasonable adjustment to allow the transfer. The Court of Appeal held, however, that the duty to make reasonable adjustments only arises in respect of employees and prospective employees who are themselves disabled; there is no associative duty to make reasonable adjustments. 

Is obesity a disability?

The Equality Act 2010 has already been interpreted as protecting employees who suffer from physical and mental conditions which result from obesity (in the 2012 EAT case Walker v Sita Information Networking Computing Ltd),  but obesity has been rejected as a disability in its own right by the UK courts. However, in a case which was heard last month the ECJ was asked to determine a reference which could significantly extend the scope of disability discrimination. The case concerns an overweight Danish childminder, Karsten Kaltoft, who was sacked by his employer (the local authority) because it was deemed that he could not perform his duties due to his weight. Mr Kaltoft brought a disability discrimination claim. The Danish courts referred the question to the ECJ whether obesity should be regarded as a disability.

If the ECJ rules that obesity can be a disability, the impact could prove substantial for UK employers. The UK has one of the highest percentages of obesity in Europe; 64% of adults are classified as being overweight or obese.  The Equality Act would need to be applied very differently if employers are required to treat obesity the same as any other physical or mental impairment. Employers would be prevented from treating an employee less favourably or dismissing the employee because of their weight. The most important impact, however, would almost certainly arise in the context of the employer’s duties to make reasonable adjustments to the workplace or working arrangements. Employers may be expected to provide specialist equipment or furniture, parking or other travel assistance and adjustments to sickness absence policies.

The latest statistics published by the Government indicate that the number of disability discrimination claims has fallen substantially following the introduction of fees, but as disability claims are among the most difficult and expensive to defend and awards can be higher than in other jurisdictions, any extension of the scope of disability discrimination would not be welcomed by employers.

Permanent link to this article: http://www.dlapiperbeaware.co.uk/testing-the-boundaries-of-disability-discrimination/

New regulations give tribunals the power to order equal pay audits

Sandra Wallace, UK Employment Group Head, comments: In 2012, the Government first proposed the introduction of compulsory equal pay audits for employers who are found by an employment tribunal to have committed an equal pay breach. Now, two years down the line, and a number of consultations later, the Government has confirmed that this measure will be introduced in October 2014.  Draft regulations have just been published.

So what does this mean for employers? This measure is part of the Government’s programme of employment law reforms aimed at addressing the gender pay gap.  It introduces for the first time, a power for employment tribunals, to require employers to audit their pay policies and practices if they are found to have breached equal pay legislation or sex discrimination provisions relating to pay.   The results of the audit must be provided to the tribunal who will determine whether or not it is compliant with the terms of its order. If the audit is compliant, the employer is required to publish it on its website (if it has one) for at least 3 years, unless to do so would breach a legal obligation (in which case it must provide the tribunal with reasons why it considers that publication would breach a legal obligation). If the audit is not compliant the tribunal must order the employer to amend it.

On the face of it, these measures seem onerous and draconian; however, they are subject to a number of important exceptions. For example, audits cannot be ordered if an employer has carried out an audit meeting the required standards within the previous 3 years; or if it is clear without an audit whether action is required to avoid equal pay breaches; or if the tribunal has no reason to think that there may be other breaches. It will, therefore, remain to be seen how often such audits are actually ordered in practice.  Businesses with fewer than 10 employees and certain new businesses will also be exempt from the regulations for up to 10 years.

Employers may be fined up to £5,000 for any failure to comply with an order to carry out a pay audit, payable to the Secretary of State. The tribunal will have regard to the employer’s ability to pay in deciding whether to order, and the amount of, any penalty.

Employers should carefully assess the impact of this new law on their business. In practice, it will only come into play if an employer unsuccessfully defends an equal pay claim. Employers who already have transparent and equal pay structures are unlikely to face claims in the first place; those who may be at risk may be more minded to settle a claim than progress to a tribunal hearing to avoid any risk of an equal pay audit being ordered.  It may, however, also serve as a useful impetus for employers to get their house in order now and fully review pay policies and practices at this stage to minimise any future litigation risks.

Permanent link to this article: http://www.dlapiperbeaware.co.uk/new-regulations-give-tribunals-the-power-to-order-equal-pay-audits/

World Cup 2014: Is your business ready for kick-off?

Ben Gorner, a Partner in our Birmingham office, comments: The 2014 World Cup is nearly upon us. The first game kicks off in Brazil on 12 June 2014. With the time difference in the UK’s favour, the matches will be screened early or late evening and may therefore have less of an impact on employers than in 2010.  However, for businesses which do not operate a traditional 9-5 working day, the World Cup will still have an impact – and all businesses potentially face issues in respect of the mornings after the nights before.

As employees look forward to the games ahead, I take a look at some of the common issues facing employers.

We would like to offer some flexibility to employees during the World Cup to discourage unauthorised absence.  What are our options?

Although there is no obligation on an employer to accommodate its staff during the World Cup, there are a number of options open to employers who wish to demonstrate some flexibility.  The options include:

  • allowing staff to work flexible hours, for example allowing late starts or early finishes
  • allowing staff to swap shifts with employees who do not wish to watch the football
  • allowing unpaid leave if the employee’s absence can be accommodated by the business
  • setting up workplace screenings
  • allowing staff to listen to matches by radio or via online streaming

How should we deal with multiple requests for time off on the same day from different employees who want to watch key games or who do not want to come into work the morning after an important match?

An employer is under no obligation to agree to requests to time off, simply because of the World Cup.  Holiday requests should be considered under the employer’s procedures in the normal way, and staff should be reminded about this.  Alternatively, if an employer wishes to be more flexible for the duration of the World Cup, any variations to its holiday policy should be clearly communicated to staff.  The needs of the business are likely to affect how many requests can be accommodated but employers should ensure that they deal with requests fairly and that any decisions do not discriminate against protected groups. It is essential to manage employee expectations to minimise staff disappointment and maintain good employee relations.

An employee was refused annual leave to watch an England game.  On the day itself, he rang in sick.  Can we discipline him?

Employers should not automatically assume that sickness absence during the World Cup is not genuine.  However, if an employer suspects that an employee has not been genuinely ill, it should investigate the matter fully.  If the employer obtains evidence which indicates that the absence is not genuine it would be legitimate to take the matter further and hold a disciplinary hearing.  If the employer forms a reasonable belief during the disciplinary process that the employee has falsely reported sickness absence this is likely to warrant disciplinary action in accordance with the employer’s policies and procedures.

We plan to screen key games during working hours at the work premises.  Will we be liable for any banter which goes on during the game?

Screening key games may be welcomed by the workforce.  However, employers will be vicariously liable for any discriminatory banter which may arise between employees.  For example, if an employee feels that racial banter is making the environment offensive or hostile, they may be able to bring a successful claim for harassment.   In order to seek to avoid liability, it is important that employers review and communicate their equal opportunities policy, and accompany it with appropriate training, and consider publishing separate guidance to its employees on the conduct expected during any screened games.

We plan to screen key games during working hours at work premises.  Employees with no interest in these games, will be expected to work as normal.  Does this raise any issues?

While there is no obligation on employers to screen any of the key games during working hours, if an employer chooses to do so it must ensure that its decision does not discriminate against any protected groups within its workforce.  A policy requiring employees who do not wish to watch any games to work as normal may indirectly discriminate against some protected groups, for example it may put women or some nationalities at a particular disadvantage.  Although indirect discrimination can be justified it may be difficult to establish this in the circumstances.

We are allowing some flexibility to our workforce during the World Cup.  One of our employees has requested that a similar policy is applied during Wimbledon.  Do we have to agree to this?

Whilst there is no obligation on an employer to allow flexibility during the World Cup, if it chooses to do so it should consider whether a refusal to apply a similar policy during other sporting events which might be better enjoyed by, for example, women, or a different age group, will discriminate against any members of its workforce.

We anticipate that a number of our employees will keep track of World Cup matches via the internet.  Should we allow this?

There is no obligation on an employer to allow its employees to use the internet during working hours to keep track of World Cup matches.  However, an employer should decide its policy on this in advance of the World Cup and ensure that whatever it decides is communicated to employees and then consistently enforced.

Should we put in place a sporting events policy?

Employers should carefully review their existing policies and procedures to consider whether they adequately deal with staff issues arising out of the World Cup.  These are likely to include absence management, disciplinary and holiday procedures and any policies relating to equal opportunities, internet usage and alcohol.   Where these do not deal with all the issues likely to arise during the World Cup, it may be appropriate to consider putting in place a separate sporting events policy.  This policy would allow the employer to specify its approach to sporting events and the expectations it has of its employees.  This will assist both employers and employees to plan ahead and facilitate open communication.

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