Age Discrimination

We touched on this in last month’s update, but interesting research has been released by the Association of Chartered Certified Accountants, who are warning their members of experiences elsewhere in Europe. The Republic of Ireland already has legislation in force for age discrimination and a firm which advertised for staff with two to three years’ post qualification experience there, had to pay a €10,000 penalty after a job applicant with 20 years’ experience was rejected twice for the post, having been told he was too senior.

We are also repeating the ACAS link here, which will direct you to guidance on employing older workers.    

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ACAS

ACAS continues to produce useful guidance on a variety of topics. Thanks to barrister, Daniel Barnett, for pointing us in the direction of the following new guidelines.

• Redundancy Handling
• Employee Communications and Consultation
• Time Off Work

Bullying and Harassment

We covered the decision last month in the case of Majrowski v Guy & St Thomas’s NHS Trust. The Health Trust was found liable for harassment by one of the management staff.

Whilst it is probably too early to draw any conclusions from the shooting at Harvey Nichols on 13th September, it does perhaps emphasise the importance of the decision in the Majrowski case. It seems that Harvey Nichols had dealt with the situation perfectly properly, having dismissed the security guard who had been responsible for the shooting. He had been dismissed, having pleaded guilty to a charge of harassing the dead woman.

Elsewhere, the Chartered Management Institute has issued its own guide (Bullying in the Workplace: Guidance for the Manager, which has been produced in association with ACAS and UNISON.

A teacher who was sentenced to a six months jail sentence for fighting back against yobs terrorising her house, has launched a claim for unfair dismissal. Her conviction was upheld on appeal, although the sentence was quashed. As we are involved in a number of cases with teachers suffering from stress, we are watching developments with interest.

According to a study by the University of Glamorgan looking at the accounts of bullying and harassment in the public sector, it is reported that black and ethnic minority employees are up to eight times more likely to be bullied than their white counterparts.    

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Trade Unions

The TUC conference took place last week at Brighton amidst growing concerns amongst employers about what they perceive to be unreasonable demands. The CBI have been warning that union expectations on new employment rights would be disastrous for the UK economy. Part of the backdrop to this is to have been the Gate Gourmet dispute that brought British Airways to a halt at the height of the holiday season. However Chancellor Gordon Brown has already told the delegates at the conference that there would be no possibility of legislation authorising secondary action.

At the TUC conference, the Employment Minister, Gerry Sutcliffe, did commit the Government to extending the operation of the Working Time Directive to offshore workers.    

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Corporate Killing

According to reports in the Sunday Times, an expert group appointed by the Scottish Executive is recommending that corporate killing be applied retrospectively in any legislation. The proposal is that culpable homicide should cover death caused by Health and Safety breaches up to 10 years ago. We are not aware of any suggestions South of the border that the offence should be applied retrospectively.    

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Good Practice

According to research undertaken by community service volunteers and Barclays Bank, seven out of 10 people claim not to have time to do voluntary work. Professor Gary Cooper in commenting on the research, suggests that it is the long hours culture that is to blame in the UK.

On the environmental front, businesses are being asked for their views on recycling for packaging over the next few years. The consultation paper is aimed at ensuring that the EU recycling targets are met by 2010. Because of the element of compulsion attached to recycling, businesses may want to think about how they place an obligation on staff to adhere to the company’s recycling targets, and whether this should be cross-referenced to the company’s disciplinary policies.    

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Data Protection

Solicitors are the target for prosecutions undertaken by the Information Commissioner’s Office. It is believed that as many as one third of the total number of law firms in the UK have not registered. Metaphors such as the “cobbler’s children” spring to mind.    

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Disability

With changes pending in the definition of disability, it is perhaps not surprising that a new task force should be looking at ways to help people with learning disabilities and mental health back into the workplace. The group includes disability charities Mencap and Scope. The organisation Remploy estimates that of 700,000 people of working age but with mild to moderate learning disabilities, 90% are unemployed. We fully expect vigorous efforts to be made to assist those with disabilities back into the workplace, given the Government’s social and economic agenda.

The charity, Scope, admits that in January 2004 there were no disabled people in their senior management team, but they now accounts for 25%. The proportion of disabled staff has risen during that period from 3 to 16%.

We also fully expect mental health problems to take a higher profile before the tribunals. In August a former TV producer, Ms Cosentino, won her case against CNN for disability discrimination and unfair dismissal. The case revolved around a significant depressive illness suffered by Miss Cosentino after the death of her fiancé in a motor-cycle accident, as a result of which she felt herself unable to work nights. She claimed that the TV company had failed to make reasonable adjustments when considering her for redundancy and victimisation.

In a decision elsewhere, The Employment Appeal Tribunal ruled on the nature of disability, in the case of Edmund Nuttall Ltd v Butterfield. The case was extremely complicated and involved the Tribunal considering instances of indecent exposure and whether they were caused by the Claimant’s depression. The Appeal Tribunal decided that exhibitionism was a condition excluded from the Act, whereas the underlying disability was not. As the reason for the dismissal was the excluded condition, it was not held to be discrimination.

The Disability Rights Commission is now undertaking a consultation exercise on the proposed Code of Practise for the Disability Discrimination Act, to take account of the changes coming into force in December 2006. The changes affect public authorities and private clubs, together with the housing sector. The Code of Practise can be accessed here.    

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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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Internet Use

According to Croners, a proposed new offence of possession of violent and abusive pornographic images means that companies should look very carefully at their internet use and abuse policies. Given that the offence would be possession, rather than acquisition, there would be some concerns about the liability of employers.

Further emphasis of the need for effective policies was highlighted by a survey from the United States by accounting agency, Account Temps. Their estimate is that staff spend as much as 56 minutes per day on personal internet activity whilst America on Line (AOL) suggests that it is as much as 2.09 hours per day. If our own experiences are anything to go by, you could spend that much time per day trying fruitlessly to send e-mails to AOL users!    

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Equal Pay

In the case of St Helen’s Metropolitan Borough Council v Derbyshire, a group of catering workers had brought a claim for equal pay. Most settled their claim, but 39 did not. Having received a letter from the council, warning that success in their claim could result in redundancies, they then pursued a claim of victimisation. The Court of Appeal held that the treatment could be seen as deferential, but the letter was a honest attempt to reach a settlement and so there was no link between the claim and supposed detriment.

Elsewhere, the Prison Service faces a potential £50m bill, after losing an appeal against 2,504 equal pay claims.

The chair of the Women in Work Commission, Lady Margaret Prosser, announced that her report on the gender pay gap will now be delayed until January 2006. The report was expected in the autumn, but Lady Prosser told the TUC Conference in Brighton that 12 months was not long enough to resolve the issue of addressing pay disparity.

The long running dispute with health workers in Cumbria appears to be in the last stages of resolution. The award negotiated by UNISON meant that 1,500 women at the Cumberland Infirmary would gain between £35,000 and £200,000 each to compensate for 14 years’ unfair pay. Interim payments have now been made of £8,000 on account.

The campaign group, Action 4 Equality, estimates that Scottish councils could face a compensation bill of more than £700m for equal pay claims. The group has already secured pay outs of £34,000 for staff in Redcar and Cleveland, whilst Newcastle City Council has reached settlement with trade unions benefiting 2,800 workers, such as cleaners and home care staff.    

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Flexible Working

According to Croner, the majority of employees eligible for parental leave have never requested time off. Their research suggests that only 11% of HR Departments encourage staff to take time off, with nearly a quarter not even being aware of the parental leave rules.

The British Chambers of Commerce report on a Microsoft survey, that more men than women believe that a 9-5 working day is out of date. The precise proportions were 68% male as opposed to 56% female. Although the questions were put on the basis of accommodating childcare responsibilities, the suspicion remains that men want the time off to incorporate a football game, whereas no doubt females are talking about genuine childcare commitments.

In a case supported by the Equal Opportunities Commission, a Southampton Employment Tribunal awarded £31,294.00 to a part-time payroll operator, who wanted to continue her part-time working hours to accommodate her childcare responsibilities. The employer, Cornelia Care Homes, had been trying to insist that she worked a minimum of 25 hours a week in the office.

The care home are not the only people to find themselves on the wrong end of a judgement on flexible working. City law firm, Herbert Smith, also found itself being ordered to pay compensation of £40,000 for failure to accommodate flexible working. Michelle Langton had lodged a grievance, having been told that she needed to revert to working the core hours and was then made redundant whilst pregnant.    

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Health and Safety

Blackpool Council has been fined £15,000 having failed to warn contractors about the presence of asbestos in a kitchen ceiling. The builders released asbestos dust having screwed into the ceiling to install a new extraction system. The council had known about the presence of asbestos since 2000, had an asbestos register and had procedures in place to manage contractors and yet still failed to tell the builders not to disturb asbestos.

Elsewhere, £175,000 damages was awarded to the family of a nurse who died after exposure to asbestos dust at Charing Cross Hospital. The nurse, Rebecca Little, was exposed to the dust as it crumbled from insulation covering pipework in the walls.

In Scotland, utility firm, Transco, were fined £50m for failing to maintain a leaking gas main. An entire family in Lanarkshire were killed when an explosion ripped through their house in 1999. Their garden was over a gas main which was corroded and leaking. The gas leaked into the foundations of the house causing the explosion. That case no doubt acts on the views of the Scottish Executive on corporate manslaughter (see above).

The TUC is of the view that up to 11m UK workers can face serious health problems as a result of prolonged standing at work. They estimate that some 2m sick days are lost each year due to lower limb disorders, with up to 200,000 people reporting their limb ailments caused or made worse by their job. The principal workers involved were shop workers, teachers, library staff and production workers. They have produced a number of recommendations in their report about the materials used in the construction of floors and also adaptation of work stations.

The Federation of Master Builders is concerned about the possibility of employers being liable for skin cancers caused by exposure to sunlight. The Federation is calling on MEPs to exclude natural solar radiation from the Optical Radiation Directive which is being voted on this month.

In the US, the Chemical Safety and Hazard Investigation Board has told BP that there must be an urgent investigation of refinery safety. The call comes after a series of explosions at the company’s US facilities. Lord Brown has accepted the need on behalf of BP and has pledged that the panel will have an independent chairman and employee representatives.

If any company health and safety officer or HR department is planning to do a presentation on the Work at Height Regulations, they will find that the HSE has launched a free speakers pack, including a PowerPoint presentation. The pack can be downloaded from the HSE website.

The HSE itself is warning businesses that they must comply with orders to keep the workplace safe, after a Nottinghamshire company was fined £5,000 for failing to implement a demand.

The Update knows the Basque City of Bilbao well and can recommend its fish restaurants and the Guggenheim Museum. Why do we make this ringing endorsement of Bilbao? On 12th December 2005, the European Agency for Safety and Health at Work is holding a European “Noise at Work Summit” in Bilbao. As Spanish cities are some of the noisiest on the planet, speakers at the conference may need to shout loudly to make themselves heard.

The ambulancemen’s union, UNISON, is concerned that ambulance crews and fire service personnel attending terrorist incidents may find themselves uninsured if they are killed or injured. The union believes that a number of personal life insurance or health policies exclude the terrorist risk. The Association of British Insurers agreed that such policies existed. Given that the number of terrorist fatalities a year is less than the average daily toll on the road, in seems incomprehensible that such exclusions should persist.

A survey of MPs found that up to two thirds would actually back a law to make the workplace and public places smoke free. Expect continued pressure on this.

A report from the TUC challenges the myth of a compensation culture in Britain. The report headed “The Compensation Myth”, sets out to demolish the more usual myths. The UK apparently pays out less money in compensation cases as a proportion of GDP than any other European country save Denmark, and the cost of compensation has remained about the same, adjusted for inflation, since 1999. The report adds that no more than 80,000 of 850,000 people who are the victims of work related accidents or injuries receive any payout, and those that do receive less than £5,000 on average. The TUC suggests that insurance premiums should be cut for those with demonstrably good health and safety practices, with priority being given to rehabilitation after accidents at work, rather than straightforward compensation.

The Health and Safety Commission reported that the total number of workers fatally injured in accidents during 2004/2005 was down to 220 from 236 in the previous year. The rate of fatal injury per 100,000 workers is now the lowest on record.    

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Immigration

According to a report penned by Richard Ford in The Times of 24th August, some 230,000 Eastern European migrants have applied to work in Britain since the expansion of the European Union last year. The figure, apparently, is some 18 times higher than the initial estimate. However, the phenomenon of the Polish plumber appears to be a myth. No more than 95 plumbers and heating engineers were amongst the hundreds of thousands applying to take low paid and low skilled jobs.

The Government is now seeking consultation with employers and educational institutions regarding a proposed points based system for managed migration. The consultation document should be accessed here. However at the date of going to press the link does nt do more than bring up the press statement.    

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Maternity Leave

We have commented before on the position of student midwives. The Government has now promised midwives that becoming pregnant will not prejudice their studies and they will get maternity leave.    

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Race Discrimination

Outsourcing group, Serco, found themselves on the wrong end of a discrimination claim brought by a BNP activist. He had been elected as a local authority councillor representing the BNP, whilst at the same time driving buses in Bradford. The Employment Tribunal found that he had not been dismissed on racial grounds, because the rationale for the decision was a fear of violence in the workplace due to the employee’s political views. However, the EAT disagreed. Following previous authorities, they held that racial grounds should be interpreted widely and as the decision to dismiss was significantly influenced by questions of race, the conduct amounted to direct discrimination.    

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Redundancy

Employers tend to be well aware of the need to investigate alternative employment when redundancy is considered. In the case of Fisher v Hoopoe Finance Ltd, the company had drawn attention to a suitable vacant position, but gave no financial details. As Mr Fisher showed no interest in the job, he was made redundant. However after his redundancy, the job was advertised and Mr Fisher said that if he’d known what the salary package on offer amounted to, he would have applied. The Appeal Tribunal decided that failing to provide the financial details of alternative jobs could amount to unfair dismissal, although compensation could be reduced for the employee’s failure to ask for details.

In the case of Alvis Vickers Ltd v Lloyd, decided at the Employment Appeal Tribunal, the Appeal Tribunal reiterated the importance of the Tribunal not substituting its own view for that of the employer. Although the Employment Appeal Tribunal held that the Tribunal was entitled to hold that the dismissal was fair, it was only in relation to the appeal process within the company’s procedures. Having found on these narrow grounds they then decided that there should be a “Polkey” reduction of 100%, so Mr Lloyd got nothing.

Elsewhere, it is estimated that Rover workers will get less than £1 per head from a trust fund set up by the directors of Phoenix, who were the guiding hand behind Rover before it went into liquidation.    

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Sexual Discrimination

Having discussed the right of a Tribunal to substitute its view for that of the employer in redundancy cases, the case of Hardys and Hansons plc v Lax shows that different considerations apply with sex discrimination. Mrs Lax was a recruitment manager in a brewery who asked to work part-time on returning from maternity leave. The employer rejected the request and the Tribunal in its turn rejected the employer’s defence. The Court of Appeal found that the Tribunal in discrimination cases has to show an objective justification, rather than the band of reasonable responses used in unfair dismissal cases. The Court of Appeal suggested that the employer should at least produce some economic analysis of the business and its needs.

It might be noticed that the legal professional feature heavily in this month’s Update. One last blast. It is reported in the August edition of People Management that female lawyers still face considerable hurdles reaching the higher echelons of the profession. Only 8.3% of the senior judiciary are female, despite the fact that 62% of law students are. Two thirds of female solicitors leaving the profession do so because of the difficulties balancing home with work, according to Law Society research. This attention is being focused on the legal profession because of the investigation by the Commission for Judicial Appointments, who are looking at a complaint by a female barrister, who applied unsuccessfully for a QC role. Having looked at the process, they found comments on the file such as “she does not look the part as is expected of a woman”.

People Management magazine also reports that women earn less than men in the same roles because of the lack of available overtime. It is suggested that managers are able to influence take home pay in an unfair way and there needs to be effective monitoring to ensure that this does not happen. It suggests that assumptions are made that women would not want to stay late.

Meanwhile, the Sex Discrimination Amendment Regulations have now been published and can be accessed here.

The European Court of Justice has ruled on sick pay attributable to pregnancy related illnesses in the case of North Western Health Board v McKenna. In the case, the Claimant was a public sector employee in Ireland and for almost the entire duration of pregnancy was on sick leave due to a pregnancy related illness. Under the employer’s sick pay scheme, she was entitled to a maximum of six months’ sickness absence, followed by six months at half pay. The scheme made no distinction between pregnancy related illness and other illnesses. The European Court of Justice held that this was not discriminatory.

In another case, the duty manager at Brighton railway station was demoted, once the employer learnt of her pregnancy. She won her case for discrimination and unfair dismissal.    

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Religious Discrmination

The Court of Appeal have been considering the right to refuse Sunday working in the case of Copsey v WWB Devon Clays Ltd. The case was not actually decided under the Employment Equality (Religion or Belief) Regulations 2003, so Mr Copsey’s claim was limited to unfair dismissal. He used the right to freedom of religion under the European Convention of Human Rights to frame his case. The company were looking to change shift patterns from six days to seven in response to increased demand. Mr Copsey said that to work Sundays would conflict with his Christian belief and it should be a day of rest. He was offered the alternative of a different job or a generous redundancy package. He declined both and his employment was then terminated. However as with sex discrimination, the test for unfair dismissal would be the reasonable range of responses, whereas for discrimination it would be an objective test of whether the employer’s requirement could be justified. We do not think the rights of employees to object to working patterns that conflict with their religious obligations has yet been fully tested.

Companies will also have to now consider the impact of the Civil Partnership Act which comes into force on 5th December 2005. This will enable same sex couples to form a partnership by registering as civil partners. In these circumstances the partners should be treated in the same or similar way as spouses. The most obvious impact is on pension schemes and insurance benefits. Conceivably there will also be ramifications for paternity leave and adoption leave.    

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Sick Absence

The Health and Safety Executive has published a new guide to assist with the management of sickness and aiding the return to work. The intention is that the implementation of the guidelines will reduce sickness absence.    

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Tribunals

From 1st October 2005 the prescribed Claim and Response Forms will need to be used for Tribunal applications. Until now it has been possible to use the old IT1s and IT3s.

Despite the TUC’s views on the compensation culture, it is perhaps not surprising to learn that the Forum of Private Businesses takes an entirely different view. Its research suggests that awards against employers for discrimination have risen by 44% during the previous year. It is estimated that a total of £20m ( a significant under estimate we believe was paid out in compensation.

In a case in Scotland, a councillor who claimed that he wasn’t given sufficient time off work for public duties won his claim at the Tribunal. He claimed that it would be reasonable to have 24 days off per year for attending committee meetings. The Tribunal held that this degree of absence would not be significant or substantial and that the employers, Sky Subscriber Services Ltd, were wrong to claim that this was excessive and unreasonable.    

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Working Time

According to a recent survey by the Freight Transport Association, 98% of lorry operators have complied with the new Road Transport Directive, limiting lorry drivers to a 48 hour week. Employers in the industry have said that implementing the regulations has proved easier than expected.

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