Breakfast Forum newsletter – February 2009
The topic of discrimination raised a lively discussion at the last Breakfast Forum on Friday 13 February.
At our next Forum on Friday 13 March we will be discussing the mental health of the workforce and how employers can benefit from a better understanding of matters relating to the psychological health of their employees. How big is the problem? What support is available? What can we do as employers better to support the workforce? The topic will be introduced by LJ Conradie, Consultant Clinical Psychologist and Managing Director of Canterbury-based firm Psicon, which specialises in promoting psychological health and wellbeing.
On 13 February discrimination was introduced by explaining the changes which will come with the introduction of the Equality Bill. Should it become law, this Bill will replace more than 10 pieces of legislation including those relating to equal pay, sex discrimination and race relations.
The government says that an Equality Bill would meet its commitment to bring together and simplify existing legislation on all forms of discrimination. It will make Britain a fairer place where people have the opportunity to succeed whatever their race, gender, disability, age, sexual orientation, religion or belief.
The Equal Pay and Flexible Working Bill was introduced in the Lords as a Private Member’s Bill. Under this Bill, should an employer lose an Equal Pay Claim, he will be obliged to carry out an equal pay audit and make the results available. The Flexible Working arrangements for those with parental responsibility for children aged 16 and under are already due to come into effect on 6 April 2009. This Private Member’s Bill goes further as it removes the age limits. The only requirement is that the person concerned must be a child and must be one “in respect of whom the employee satisfies prescribed conditions as to relationship”.
Over breakfast, members were asked to discuss a case study where a job is advertised specifying female applicants, as the work may require searching female members of staff. At interview, the applicant turns out to be a man who has undergone gender reassignment surgery.
Members discussed whether it was legitimate
to specify female applicants
for the employer to canvass the opinion of female staff
to decline the applicant after female staff objected to the appointment, and to re-advertise the job.
could being female reasonably be said to be a genuine occupational requirement.
It was not appropriate to canvass staff as the employer would not have done so had the applicant been a woman, and sex discrimination regulations state it is unlawful to discriminate on grounds of gender reassignment.
The job applicant could only be declined on merit. Re-advertising the position is instant proof of discrimination. A let out exists for intimate body searches as carried out by the police of customs.
Further case studies were discussed to illustrate examples of discrimination and harassment. Members commented that the whole process of recruiting is discriminatory because we all have our prejudices; some organisations are still almost exclusively white because of a “father’s job goes to son” culture, or because of demographics and geography (the lack of ethnic minorities in East Kent being one example).
Regarding disability, employers have obligations to make adjustments in the recruitment process. They should ask candidates whether they have a disability requiring adjustments. If a disability is not visible, such as dyslexia, an employer could not reasonably be expected to know that the disability is placing the employee at a disadvantage. Disability is about making reasonable adjustments to make work possible rather than leaving someone unemployable. Employers should encourage a management culture where people are adaptable.
We also discussed the case of a woman who requested flexible working hours to care for her disabled son. She was refused and given voluntary redundancy. She claimed unfair constructive dismissal and disability discrimination, which the tribunal referred to as “associative discrimination”. This could also apply to someone being refused flexible hours to look after ageing parents.
Employers should look closely at their equal opportunities policies: these policies should be followed, staff should be trained and records kept. In the absence of defined policies, such as for sickness absence, employers would have difficulty treating one sick employee differently to another.
Policies should also specify that an employer will not tolerate racism from staff or from customers, and a member of staff should be able to withdraw if he is being abused by a customer, rather than being reprimanded for it.
The forum ended with members discussing different practices in France, the UK and the US regarding re-employment after a dismissal or redundancy.
For the future
Our aim is to explore hot topics in employment law and HR management, over a relaxed breakfast at the Rose and Crown pub in Elham. The number of members attending each Forum is limited to about 12, to enable everyone to take an active part in the discussions. Recent participants have come from a range of local industries including manufacturing software providers, the care services, business training, accountancy, further education, clinical and occupational psychologists and international transport.
If you are interested in attending the next forum on 13 March, please contact anne@employment-relations.co.uk, tel: 01303 840001.
