Age Discrimination

Most employers will now be aware that from October 2006 discrimination on the grounds of age will be unlawful in employment.

Whilst it will be some time before we see how the new regulations are being interpreted by the Tribunals, no employer wants to be in the position of being one of the first cases. Careful attention therefore has to be paid to some of the information emanating from social commentators and professional institutes.

The CBI is concerned about the right to continue in work after 65. The CBI says it does not object to workers having the right to ask beyond the default retirement age of 65, but employers should be in a position to make the final decision. That of course is an effect the position now. The CBI is also concerned to retain length of service benefits as being necessary for staff retention. The most common perception in discussing age discrimination is that the proposals are designed to assist older workers. However in fact it may be that younger workers are some of the first to take advantage. It might be perfectly practical to mount a challenge to a pay structure built on length of service on the basis that it discriminates against younger workers.

Australia already has legislation in force on age discrimination and Virgin Blue, the Australian airline owned by Virgin, has been found guilty of discriminating against older women working as air hostesses. Eight women between 36 and 56 took their case to a Tribunal after being put through an interview that required them to sing and dance. Virgin admitted it had not hired cabin crew over the age of 36 in its two year recruitment drive.

The Law Society is warning that the current proposals will actually cause employers to discriminate against applicants over 65. As US research suggests that people in their 50s were “stroppy and litigious” (Ed - That description does not fit the writer.) older workers may find themselves second in the queue to more vociferous fifty somethings.

The CIPD (Chartered Institute of Personnel Development) suggest that organisations are losing out by failing to target older workers when recruiting. Only 7% of employers actively target older workers. Interestingly enough, their research also suggests that men are perceived to be older employees from age 60 onwards, but women from age 50 fit that bill. Their survey also shows that more than a fifth of employers admit to discriminating against older employees. The percentage of those who do not reply honestly to surveys is not disclosed. To see the survey click here    

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Bullying and Harassment

Again, research from the CIPD shows some interesting results. According to the publication, Managing Diversity, which is produced by the CIPD, employers need to be aware of the fact that overweight people are more at risk from bullying and victimisation in the workplace. That fact comes as the Times of 27th October reports that Walmart the largest retailer in the world and ultimate owner of Asda is considering changes in the workplace to make it more difficult for overweight people to take jobs with the company. It is proposed to introduce regular physical activity in the working day with the hope that it will discourage anyone not physically fit from joining the company. In case any reader does not know Walmart, are headquartered in the United States, not North Korea.

Amicus some years promoted a dignity at work bill which has ever actually made it to the statute book. However, in conjunction with a number of employers including BT and British Aerospace, the union has developed a website, www.dignityatwork.org, where advice is given to those being bullied. The advice includes keeping a diary and confronting the bullying. To this we would add our own suggestion that if the bullying is causing stress, which of course inevitably it will be, an early medical appointment is a good idea. There then at least will be some corroboration for saying within any grievance complaint that an individual’s health has been damaged by the bullying and harassment.

The CIPD also report that about half of middle managers in the UK claim to have been bullied.    

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Disability

The implementation dates for different sections of the Disability Discrimination Act have been confirmed. From 5th December 2005 disability will cover HIV/AIDS, Cancer and Multiple Sclerosis from the point of diagnosis, not just the onset of disabling symptoms and the need for mental illness to be clinically well recognised will be removed. That itself will have potentially major implications for the handling of stress. All employers will need to be alert to this.

The National Audit Officehas also told the Government that not enough is being done to help the disabled in to work. The Audit Office found that just 5% of 2.6 million people on incapacity benefit were being supported by a back to work scheme. Margaret Hodge the Minister for Employment and Welfare Reform has said that the Employment rate of disabled has improved by 7% since 1997 but admits there is more work to be done.

Looking at developments outside of the UK, IBM has become the first major employer in the US to pledge not to use genetic screening to weed out job applicants or for defined benefits. Given that the only practical implication in the workplace for genetic testing would be to assess the potential for disabilities, it is difficult to justify any use of it.    

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Employee Rights

A number of changes came into force on 1st October, including rules on industrial action and trade union recognition ballots. Perhaps the most significant change is the definition of harassment which can include harassment related to a person’s sex, and does not have to be sexual in nature. An example of this might be putting important work day items on to a high shelf reachable by a majority of men, but not by a majority of women.    

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Equal Opportunities

The Government is looking at equality issues in the public sector and has launched a new consultation document entitled “advancing equality for men and women”. The duty will require all public authorities to monitor their activities and respond to the different needs of women and men and to invite employees, consumers and other stakeholders into the assessments. They will then have to draw up and publish an equality scheme identifying gender equality goals.

In Scotland, Glasgow city council has agreed a £40,000,000 settlement with female workers over equal pay claims. Average compensation is in the region of £9,000 and it is believed 11,000 staff will receive compensation.

The Equal Opportunity Commission is lobbying for a radical rethink of equality laws on the basis that the pay gap would not be narrowed without. The Equal Opportunity Commission therefore is calling for an obligation on employers to take action on the pay gap with equal pay reviews.

According to research undertaken by ISR around a quarter of females feel excluded from decision making in their company and are afraid to speak up if they disagree with policies. The proportion of female managers thinking their company not to be well managed is around twice their male counterparts at 30%. The magazine People Management this month also reports on a book called “A women’s place in the boardroom” and it describes adjectives commonly applied to men and women. Male adjectives include self-reliant, analytical, aggressive, competitive and ambitious, whilst female include warmth, compassion, sensitivity and loyalty. Companies tend to favour the traditionally male values. If you are in any doubt, take a look at the job adverts in the newspaper.

In an Employment Appeal Tribunal decision in Scotland it was decided that a compromise agreement did not exclude an equal pay claim. Despite the agreement stating that it excluded the equal pay claim, she was allowed subsequently to bring a claim when she discovered differentials in pension provision. Because the compromise agreement referred to any claims that she believed she might have, the Appeal Tribunal decided that the equal pay was not excluded because as of the date of the agreement she did not believe she had a claim. Possibly some better legal drafting skills might have saved the day.    

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Flexible Working

Possibly the big issue of the month is the Working Families Bill that was published on 19th October. The Bill sets out plans to extend maternity leave for mothers and give paternity leave to fathers. In essence the proposal is to extend maternity leave from six months to nine months from April 2007 with a further extension to one year before the end of this parliament, presumably 2009. Apart from extending maternity leave the Bill introduces the concept of transferability. If a mother returns to work before the end of her maternity leave the father would be able to take it over. Unless both mother and father are working for the same organisation it does suggest that there may be some logistical hurdles ahead for monitoring the take up. To see the press release click here. Research from AXA Insurance suggests that most businesses regard parental leave as a threat to their business.

The proposals have not been welcomed either by the British Chambers of Commerce. Their Director General, David Frost, said “Our members fully support the concept of maternity leave and the principle of flexible working. However, employers are concerned about the unprecedented pace and extent of change… In our latest survey of 1,200 employers, 80% opposed further extensions… In 2003, paid maternity leave increased from 18 weeks to six months. Now, under these proposals, this will increase to nine months and soon to a full year.” The Chamber also takes the view that it could be an administrative nightmare.

Apart from the changes to maternity/paternity leave the Bill also introduces the concept of “keeping in touch” days so that, by agreement a woman can go back into work for a few days whilst on maternity leave without losing her rights or prejudicing her statutory pay. It will also be possible for employers to maintain reasonable contact with employees on leave to assist with man power planning issues. Those proposals as least are likely to find favour with most employers. More details can be accessed here.

Earlier this year we referred to the case of Michelle Langton v Herbert Smith. The case demonstrated that law firms, even very large city ones, can make significant errors. The case was taken to appeal by Herbert Smith, but Michelle Langton has emerged victorious from the Appeal. Evidence was given to the tribunal that she had come under pressure to resume full time hours after returning from maternity leave. Having failed to yield to the demand to return to full time working she was made redundant. Herbert Smith have indicated their intention to go to the Court of Appeal but on reading the judgements we think it unlikely they will succeed.

Despite the apparent brouhaha about flexible working, statistics show that the opportunities to work flexibly have increased. During the last six years, the number of firms offering flexible working has doubled. Job sharing is offered by 41% of employers, while moving from full time to part time has increased from 46% to 64%.

The British Chambers again report developments on home working. As at spring 2005 it calculates that 2.4 million employees or 8% of the workforce could be defined as teleworkers, i.e. those who use phones and computers to work from home.    

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Health and Safety

It has been reported that no manslaughter charges will be brought by the CPS against the management of Rail Track or Jarvis in respect of the Potters Bar rail crash.

As the Government continues to contort itself into ever tighter knots about the issue of workplace smoking, England is now the only part of the United Kingdom to opt for an outright ban on smoking in the workplace. Northern Ireland and Scotland together with Wales have already opted to ban smoking in all work places. In fact the British Hospitality Association has changed its position from opposing a smoking ban to supporting total prohibition.

The HSE has embarked on a nationwide initiative on visiting building sites with a view to improving safety performance. Contractors will have to ensure that they have a system for control of contractors to check the competence of those sub-contractors and to ensure that their work is monitored and safety standards are met.

The HSE has also served prohibition notices on Stockport Metropolitan Council and their contractors in relation to work being undertaken to upgrade Council owned properties. The Stop Notice was imposed after the presence of asbestos was diagnosed and will remain in place until a comprehensive survey has been undertaken.

Construction company MJ Gleeson has been fined £50,000 after a quantity surveyor died under the wheels of a forklift truck. It was found that the contractor had failed to implement a proper traffic management system on the site.

Not surprisingly, research from Ireland’s Health and Safety Authority has indicated that language barriers are an impediment to effective health and safety. In the Republic, one in eight employees killed in the workplace were foreign workers. In particular the influx of workers from Eastern Europe were at risk because of failing to understand health and safety notices and procedures.

In the UK the TUC takes the view that the HSE is letting employers off the hook. General Secretary, Brendan Barber, was quoted as saying “Last year 220 workers were killed in the UK, over 150,000 injured… we have to see more inspectors out there visiting workplaces”. The TUC’s response followed the publication of the HSC’s annual Offences and Penalties Report for 2004/2005. This showed a total of 712 prosecutions and 8445 enforcement notices.

The British Retail Consortium is also concerned about the treats of physical violence to staff which increased by 14% during 2004.

Transco has been fined £1 million and ordered to pay £134,000 costs after a prosecution in Manchester Crown Court. This followed a £15 million fine that was imposed in August of this year for an explosion in Lanarkshire.

Finally on the subject of Health and Safety, a Virgin Atlantic masseur has been awarded £100,000 by Winchester County Court for repetitive strain injuries. She administered back and shoulder massages to first class passengers in-flight as well as at the airport.    

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Immigration

Will the last person in Poland please turn out the lights. According to reports this month, a group of dentists from Poland are arriving in Scotland to provide NHS treatment, whilst elsewhere Tesco is recruiting heavily to cover hard-to-fill vacancies. The Organisation is quoted as saying that 37% of the Polish workers hired in February had Masters Degrees.    

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Minimum Wage

The minimum wage is now set at £5.05 per hour, due to increase to £5.35 in October 2006. The British Chambers of Commerce are urging the Government to re-consider in the light of the worsening economic climate in the UK.

The Government is changing the way in which the working tax credit is applied. Currently around 580,000 receive the working tax credit which is paid through the payroll. From 7th November the revenue service will pay all new claims directly into employee’s bank accounts. The intention is to reduce business costs and improve privacy. However, for the moment existing claims will continue to be paid through the payroll. Between December this year and February 2006 remaining claimers will be switched to direct debit with all employees in direct payment from 31st March 2006. All employers will be receiving communication from the Revenue very shortly.

The state of the labour market is somewhat difficult to determine. The Office of National Statistics has detected that more people are being made redundant, fewer job vacancies are being reported, and yet full time employment has still risen. The CIPD reckon that this is due to fewer people leaving the unemployed count and that there is a hard core of disadvantaged people for whom it is difficult to move out of unemployment.

The manufacturing sector continues to be somewhat stressed. Output fell by 0.2% in August and is now in technical recession.    

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Pensions

Put the champagne on ice, go and get the balloons out, and let’s make Whoopee! The European Union has declared 2006 as the European Year of Workers Mobility. When you have finished signing Auld Lang Syne at the stroke of midnight, perhaps a verse or two of Ode to Joy would be appropriate. The Year of Mobility is coupled with a draft Directive on portability of pensions. It is intended that workers will be able to move from country to country without any significant loss of work pension. The Commissioner for Employment is quoted as saying, “If you expect workers to be mobile and flexible we can not punish them if they change jobs. Pension rights must be fully transferable. This directive is long over due.”

From 6th April 2006 there will be a cap of £1.5 million on the value of pension funds.

The Government has announced that it has reached a settlement on the issue of public sector pensions. No matter how young anyone currently in Government service can expect a final salary pension scheme at age 65. New entrants will have a later retirement age. This decision has been slammed by the British Chambers of Commerce who compare the situation with the private sector where many employees are struggling to pay for pensions and/or having to work later.

The Civil Partnership Act 2004 comes into force on 25th December 2005. That will give similar benefits to a couple registering a civil partnership as to those who are married in the context of tax, inheritance and importantly employment and pension benefits. Employers need to check their pension and benefits package to ensure that this new legal relationship is covered. If not, a refusal to payout a widows pension to the survivor of a gay couple would prove discriminatory.    

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Racial Discrimination

According to a report by the Equal Opportunities Commission, women from ethnic minority groups are three to four times more likely than white women to take a job at a lower level than that which their qualifications suit them. They are also three times more likely to be asked about marriage plans. The EOC has launched an investigation. The Commission for Racial Equality has just published its Race Equality Scheme which can be accessed here. It has also published a guide promoting good race relations which is aimed at public authorities.

Finally looking at public sector employers a white South African prison officer has been awarded more than £380,000 in compensation by a Tribunal who found that he was the butt of discrimination at the Jail where he worked in Wiltshire. In the judgement it was said that there was evidence of name calling and racist abuse by fellow officers which the prison authorities failed to address.    

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Redundancy

Thousands are Rover workers are sharing a £14 million payout after winning a Tribunal redundancy claim. The CGU took their case to the Tribunal claiming that they had not received the eight weeks period of notice to which they were entitled to. The Tribunal found in their favour and as the Company is in administration the money will come from the Government Guarantee Scheme.

Elsewhere on the subject of redundancy, the case of Leicestershire City Council v UNISON made clear that the consultation period could not be compromised. The time for consultation began when the practical decision had been taken and the closure of one contract and the engagement on new terms could not take place until that consultation period was through. The EAT awarded each of the workers 90 days pay.    

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Sexual Discrimination

Apart from reports elsewhere in this Update there have not been a lot of developments in the last four weeks, expect that the Health Secretary Patricia Hewitt has been forced to admit that she sexually discriminated against the male candidate applying for the Development Agency post. She appointed a less qualified woman. The Commissioner for public appointment had ruled that giving the post to Mrs Channon had breached the code of practice because the decision was not made on merit. The male applicant has been paid £18,000 costs.    

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Sick Absence

Working for the public sector can seriously damage your health, or so it would seem. According to research from the CIPD, the number of days illness per employee in the public sector amounted to 10.3 days against 6.8 days in the private sector. Other research from the Employment Law Advisory Service found that six days were costing the British Economy more than £12 billion per year, or an average of £601 per employee. The highest rate of absence is on a Monday morning. The Chartered Institute of Personnel Development is also suggesting that group income protection schemes are a valuable way forward for companies, but only 20% of firms actually offered it.    

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Stress

Next month marks 12 months since the HSE developed its stress management standards. The standards can be downloaded here

Stress has to be assessed on a case by case basis. One surprising case that was reported in the Times during October that a Mortuary attendant who developed a morbid fear of death. She complained that handling corpses became more and more difficult over a period of time. Every day that she stayed in the mortuary aggravated her symptoms of depression and post traumatic stress. The tribunal was told that she had frequently asked her employers to move to another department, but having got no where, signed off sick. She had claimed constructive dismissal and disability discrimination and won.    

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Temporary Workers Directive

Although the Agency Workers Directive has now been formally dropped, there still is some political pressure to see it or something like it back in place. The TUC General Secretary, Brendan Barber, is quoted as saying that too many temporary staff are treated as second class workers and has urged European wide rights for agency workers. A TUC statement can be read here. Meanwhile the Recruitment and Employment Confederation (REC) have lobbied Downing Street in the campaign called “Protecting Choice”. They urge the Government to resist attempts to impose further legislation and insist that temporary workers are sick of being patronised.    

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Tribunals

A scaffolding supervisor has just been awarded £25,000 for unfair dismissal having been sacked after taking a day’s sick leave just before going on holiday. The company claimed that he had failed to affect a proper handover. On the day he was off it had been discovered that there was large volume of outstanding work, however as the company had failed to go through proper procedures his dismissal was found to be unfair.

In England too the manner of dismissal has cost a company dear. First Bus had been ordered to pay £65,000 damages and compensation to a driver who refused to take a random breath test when he came in to report sick. He said he had only come in to brief his assistant because he was ill. The Disciplinary process that followed did not include any written or oral evidence and he had not been warned of the consequence of refusal.

The Court of Appeal has also ruled on personality difficulties in the workplace. In the case of Perkins v St George’s Health Care NHS Trust, it was held that it was possible to dismiss for some other substantial reason where an employee was perfectly good at his job but had a difficult personality.

According to the CBI, industry is losing confidence in the Tribunal system. It has published a report “Restoring faith in Employment Tribunals”, demonstrating that all firms with fewer than 50 staff taking part in their survey settled claims regardless of merits. It also recommends that fees should be paid by the employee before going ahead with a claim.

Elsewhere the Bar Council has given permission to Barristers to coach witnesses in giving evidence. This is not a carte blanche to prep the witnesses in the evidence that will be given and the words that they should use, simply to familiarise themselves with the situation that they will face.

The Employment Appeal Tribunal has just given an interesting decision in the case involving the imposition of restrictive covenants in the case of Windsor Recruitment v Silverwood Windsor Recruitment wanted to change staff contracts to impose restrictive covenants. It dismissed some employees who refused to accept them. The Employment tribunal had held that the covenants were too wide and therefore unenforceable, leaving the employer unable to justify a dismissal. The Appeal Tribunal overruled this decision saying that the reasonableness of the covenants was not the absolute and definitive factor. If the covenant is only arguably unenforceable, then the tribunal should be looking at the time given to the employees to consider the proposals and opportunities for legal advice.    

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Working Time

Lorry drivers’ hours have been brought into line with the overall directive on the maximum working week, but still there are some protests. A rally took place in Dover recently with protesting lorry drivers. The cause of the protest was the exemption secured by the Freight Transport Association for a 26 week reference period for the working week rather than the standard 17 hours.

In Europe the Advocate General has issued an opinion confirming that rolled up holiday pay can be lawful. For this to be acceptable there has to be some mechanism in place at the company to ensure that the minimum holiday is actually taken.

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