Discrimination Law and Employment Issues (Thorogood Reports)

THOROGOOD PROFESSIONAL INSIGHTS A SPECIALLY COMMISSIONED REPORT DISCRIMINATION LAW AND EMPLOYMENT ISSUES Avoiding the ...

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THOROGOOD PROFESSIONAL INSIGHTS

A SPECIALLY COMMISSIONED REPORT

DISCRIMINATION LAW AND EMPLOYMENT ISSUES Avoiding the pitfalls in: Age, disability, gender, race, religion, sex and sexual orientation

David Martin

IFC


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A SPECIALLY COMMISSIONED REPORT

DISCRIMINATION LAW AND EMPLOYMENT ISSUES Avoiding the pitfalls in: Age, disability, gender, race, religion, sex and sexual orientation

David Martin

Thorogood Publishing Ltd

Other Thorogood Professional Insights

10-12 Rivington Street London EC2A 3DU t: 020 7749 4748 f: 020 7729 6110 e: [email protected]

Applying the Employment Act 2002 – Crucial Developments for Employers and Employees Audrey Williams

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© David Martin 2006 All rights reserved. No part of this publication may be reproduced,

A Practical Guide to Knowledge Management

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HR Business Partners and HR Outsourcing Ian Hunter and Jane Saunders

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Employee Sickness and Fitness for Work

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Special discounts for bulk quantities of Thorogood books are available to corporations, institutions, associations and other organizations. For more information contact Thorogood by telephone on 020 7749 4748, by fax on 020 7729 6110, or email us: [email protected]

ISBN 1 85418 339 7 978-185418339-2 Printed in Great Britain by Marston Digital

Contents

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DISCRIMINATION

1

Introduction .................................................................................................2 Diversity .......................................................................................................3 A dignity at work policy..............................................................................5 Liability .......................................................................................................11 Bullying .......................................................................................................12 Avoidance or control.................................................................................15 Evidence......................................................................................................16 Practical implications ................................................................................17 Social events...............................................................................................18 Alcohol ........................................................................................................19 Equality Act 2006 .......................................................................................20 Questionnaires ...........................................................................................21

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SEX AND SEXUAL ORIENTATION DISCRIMINATION

22

A. Sex Discrimination – introduction ......................................................23 Harassment ................................................................................................25 Equable treatment ....................................................................................27 References ..................................................................................................28 Maternity ....................................................................................................29 Risk assessment .........................................................................................30 Flexible working ........................................................................................33 Increasing parental rights.........................................................................36 Discrimination against males ...................................................................37 B. Sexual Orientation discrimination ......................................................38 Gender change...........................................................................................38 Administration ..........................................................................................39 Unforeseen effects .....................................................................................40 The ‘but for’ test .........................................................................................41


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CONTENTS

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RACE AND RELIGIOUS DISCRIMINATION

42

A. Race discrimination – introduction.....................................................43 Who is covered? ........................................................................................44 Avoiding harassment penalties ................................................................49 Duty to job applicants ...............................................................................49 Promotion ...................................................................................................52 Provocation ................................................................................................52 Positive discrimination..............................................................................54 B. Religion or religious belief discrimination – introduction...............54 Scope...........................................................................................................55 The ‘but for’ test .........................................................................................56

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DISABILITY DISCRIMINATION

57

Introduction................................................................................................58 Legislation – old and new .........................................................................58 Fundamental principle ..............................................................................59 Application of the legislation....................................................................60 Recruitment ................................................................................................65 A wider duty?.............................................................................................66 The Disability Discrimination Act 2005...................................................67 The ‘but for’ test .........................................................................................67

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AGE DISCRIMINATION

68

Introduction................................................................................................69 Recruitment ...............................................................................................69 Transitional arrangements........................................................................78 Forced retirement – procedure ................................................................79 Optional retirement – procedure..............................................................80 Postscript ...................................................................................................81 The ‘but for’ test .........................................................................................81


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CONTENTS

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NON-STANDARD EMPLOYEES DISCRIMINATION

82

A. Part-timers .............................................................................................83 B. Fixed term workers ..............................................................................86 C. Homeworkers .......................................................................................90 D. Agency staff...........................................................................................93 The ‘but for’ tests .......................................................................................94

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HUMAN RIGHTS

96

A. Rehabilitation of Offenders ................................................................97 B. Whistleblowing ...................................................................................100 C. Human Rights .....................................................................................104

APPENDICES

107

1. Data sheet – annually reviewed figures ............................................108 2. Electronic Communications policy ....................................................109 3. Examples of flexible working .............................................................113 4. Draft homeworking policy..................................................................114 5. Cases .....................................................................................................116


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Chapter 1 Discrimination Introduction ...........................................................................................2 Diversity .................................................................................................3 A dignity at work policy........................................................................5 Liability .................................................................................................11 Bullying .................................................................................................12 Avoidance or control...........................................................................15 Evidence ...............................................................................................16 Practical implications ..........................................................................17 Social events.........................................................................................18 Alcohol..................................................................................................19 Equality Act 2006 .................................................................................20 Questionnaires .....................................................................................21

Chapter 1 Discrimination

Introduction Discrimination in employment could be defined in non-legal terms as ‘unjust, unfair or unmerited prejudice or treatment which, in the context of this report, takes place on one of the following bases’ – sex, sexual orientation (including gender change or ‘reassignment’), race, religion (and/or religious belief), disability, age, expired criminal record, due to the disclosure of an illegal act (or because information about an illegal act is being concealed) as well as different treatments being given to part-time or fixed-term employees compared to full timers or permanent employees (the EU’s ‘comparability’ principle). Usually such ‘unjust or prejudicial treatment’ emanates either from ignorance (or lack of training) or immaturity – or both. Normally an employer will be liable for the acts of its employees unless it can show that it took all reasonable steps to prevent discriminatory acts (or did not know of such acts), or it took steps to stop it immediately it became aware of it. The regime which prohibits discrimination on the legal bases has grown over the past 30 years, starting in the mid 1970s with sex and race discrimination and culminating in October 2006 with age discrimination. Despite this legislative regime having existed for nearly two generations, there are still a large number of successful tribunal claims for discrimination every year. One has to wonder where the perpetrators of the illegal acts in these cases have been for the last 30 years, during which the whole ethos of society has changed whilst apparently their antediluvian practices and attitudes have not. Unfortunately, as far as employers are concerned, if such reactionary attitudes are evinced in the workplace, unless they can •

demonstrate reasonable efforts have been made to train their workforce not to discriminate, and

•

show that they provide detailed rules and procedures aimed at preventing breaches, and

•

prove that they would apply and/or have applied genuine sanctions against those that breach the rules,


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D I S C R I M I N AT I O N L AW A N D E M P L O Y M E N T I S S U E S

then they could be required to pay substantial amounts of compensation to those who prove their cases against others of their employees (whose actions they may genuinely disown). Unlike unfair dismissal compensation which is capped at a figure reviewed each year, compensation for discrimination is unlimited and there have already been several cases where compensation in excess of £1 million has been awarded. Whilst these large settlements are the exception and most are settled for a few thousand pounds, the average settlement (excluding the very large items) is in excess of £10,000. In addition, employers must fund the defence of these claims which – with legal advice etc. – could well be double the average amount of compensation.

Diversity Traditionally, progressive employers have devised (and tried to ensure adherence by their employees at all times to) policies entitled ‘equal opportunity’, mainly since the first attempt to eradicate discrimination tried to ensure that (usually) women doing the same or similar work to that undertaken by men were not exploited by being paid less than the ‘male’ rate – the Equal Pay Act. Whilst considerable progress may have been made on this basic endeavour, it is somewhat alarming to read the results of a 2006 survey from the Equal Opportunities Commission that 16% of those surveyed were unlawfully discriminating against their female workers by paying them less than male comparators. Similarly, only 30% of employers have carried out an equal pay review, which some would argue is an essential concomitant of the move towards ‘equal pay for equal work’. ‘Equal opportunities’ policies were appropriate for some years after the enactment of the Equal Pay legislation, but this title may not encompass all that is required to be addressed nowadays. Trying to treat everyone ‘the same’ may not be either the best practice or even practical, hence many practitioners feel it may be more logical to recognize that since people are different and some differences cannot be reconciled, trying to treat them all fairly and with dignity may be a more appropriate endeavour. Ideally an employer should be capable of using a diversity of employees of different races, genders, religious beliefs, and ages etc. within their operation and treating them all fairly. In the last few months of the Conservative Government in 1996/97, a bill entitled ‘Dignity at Work’ was moving though the parliamentary process. This initiative, if enacted, would have echoed the attempts to stamp out discrimination by encouraging everyone to treat everyone with whom they came into contact


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at the workplace and within the working environment with respect and dignity. Unfortunately that Bill was lost with the election and similar proposals now seem to have been abandoned. However, ‘Dignity at Work’ may be a better name for these diversity policies, not least since the prohibition of bullying, harassment, horseplay etc. (the outlawing of which should be specifically addressed) fits more easily under a ‘Dignity’ heading than one of ‘Equal Opportunities’ The Employment Appeal Tribunal (EAT) are on record as stating that in all discrimination cases a tribunal should ask to see such a policy during the hearing. Whilst not having such a policy may not lose the case, an employer who lacks one and cannot prove they have brought such requirements to the attention of their workforce (and apply sanctions for any break) may find it difficult to defend the claim successfully. Both employer and employees may have a liability to an employee (or exemployee) claiming to have been injured by discrimination. Employers need to be proactive to ensure everyone knows, understands and above all abides by the policy. In addition, for the employer to be able to defend a claim, they must be able to show that they regularly checked compliance and took firm and prompt action in the event of any transgression. It has been suggested that employers should adopt a ten point action plan to make dignity at work an automatic and integral part of their operations and to try to ensure that everyone complies with the anti-discrimination legislation.

A ‘dignity at work’ checklist 1.

Develop a policy

2.

Review recruitment, selection and promotion procedures regularly

3.

Draw up clear and justifiable job criteria

4.

Devise an action plan, including targets

5.

Monitor progress in achieving such objectives

6.

Train staff responsible for recruiting and selecting employees to avoid all discrimination

7.

Consider the organisation’s image whenever there is a failure to comply

8.

Use flexible working (particularly for those returning from maternity leave and/or with family commitments), including the provision of special equipment and facilities for the disabled*


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9.

Link with local schools and community groups (the education system tends to be to the fore in understanding and promoting diversity and equality)

10. Provide pre-recruitment training to prepare potential applicants if selection tests are used * Under the Access to Work scheme employers are able to obtain grants of up to 80% of the cost of obtaining equipment etc. to help enable the disabled to work, or 100% to enable an existing employee to continue to work.

A dignity at work policy Wording of a draft or suggested policy follows. Each employer may require somewhat different wording and thus this draft should be customized before being used.

Example of policy A. DIGNIFIED TREATMENT

1.

[The company] is committed to the policy of equal treatment of all employees and applicants, etc., and requires all employees, of whatever grade or authority, to abide by this general principle and the requirements of the Codes of Practice issued by the Equal Opportunities Commission, the Commission for Racial Equality, under the Disability Discrimination Act (and, in Northern Ireland, the Fair Employment Commission). [Note: In 2007 the Equal Opportunities Commission, the Commission for Racial Equality and the Disability Rights Commission are to be merged as the Commission for Equality and Human Rights.]

2.

[The company] will not tolerate discrimination on any of the following grounds: a)

by treating any individual on grounds of their gender or sexual orientation, race or colour, marital or civil partnership status, age, nationality or ethnic or national origin, religion, disability or membership or non-membership of a Trade Union less favourably than others


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b)

by expecting an individual, solely on the grounds stated above, to comply with requirements, for any reason whatsoever related to their employment, which are different to the requirements for others

c)

by imposing on an individual requirements which are in effect more onerous on that individual than they are on others – e.g. applying an unjustifiable condition which makes it more difficult for members of a particular race or sex etc. to comply, than others not of that race or sex, etc.

d)

by the victimisation of an employee

e)

by the harassment and/or bullying of an employee (see ancillary section of this policy below)

f)

by any other act, or omission of an act, which has as its effect the disadvantaging of an employee or applicant against another, or others, purely on the above grounds.

3.

[The company] will, on notification of an alleged act of discrimination, immediately investigate it and, where such is found to be the case, require the practice to cease forthwith, make good damage or loss (if applicable) and investigate any employee accused of acting in a discriminatory manner.

4.

Any employee found guilty of discrimination will be instructed to desist forthwith. Since all acts of discrimination are against company policy, any employee offending will be dealt with under the disciplinary procedure. Unless assurances of future non-discriminatory actions, speech and attitudes are forthcoming, an employee may be dismissed. Any employee who re-offends may be dismissed.

5.

[The company] recognises the right of an employee to belong to, or not to belong to, a Trade Union, and membership or non-membership of such a Union, will not be taken into account in any way during the career of the employee.

6.

[The company] commits itself to the employment of disabled personnel whenever possible, and will treat such employees in aspects of their recruitment and employment in exactly the same manner as other employees, the difficulties of their disablement permitting, making reasonable adjustments wherever necessary. Assistance will be given, wherever reasonable and possible, to ensure that disabled employees are helped in their journeys to and from their place of work, in access


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to their workplace, in gaining access to the facilities on company premises and in progressing in their careers. Appropriate training will be made available to such personnel who request it. [The company] is keen to hear ideas whereby its facilities and procedures can be made more user-friendly for the benefit of the disabled. [Note: Under the Disability Discrimination Act it is also illegal to victimise any employee because of their efforts to help ensure the rights of the disabled. Employers can positively discriminate in favour of a disabled employee.] 7.

All employees are required to treat everyone they come into contact with in the execution of their duties in an age-neutral fashion. That is, on no account should there be any jokes, comments, rude (whether intended or not) assertions, age-based words or descriptions which could insult or hurt another person on an ageist basis.

8.

No-one working on a part time basis should be treated in a less favourable manner than a person doing comparable work who works on a full time basis, neither should a person working on a fixed term contract be treated less favourably than a person doing comparable work on a permanent contract basis.

9.

Every manager should be made aware of their personal responsibility for ensuring adherence to this policy and reporting any perpetrator in order for sanctions to be considered.

10. Anyone reporting a breach of any of the above matters, or any other matter which breaches legislation etc, will be protected by the organisation. Anyone becoming aware of such a breach is encouraged to report the matter to [nominated person] who will investigate. Disclosure of the name of the person reporting the matter will not be made without that person’s prior authority. HARASSMENT AND BULLYING

1.

The following actions are entirely unacceptable and will be treated with severity as they are regarded as gross misconduct a)

harassment – that is foisting one’s unwelcome attentions on another employee, usually (but not exclusively) with sexual intent

b)

bullying in whatever form and by whatever means


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c)

victimisation for whatever reason, including calling into question or ridiculing a person’s gender, age, race, religion or religious belief, sexual orientation, disability, dialect or accent etc.

d)

the operation of initiation or leaving ceremonies of any description

e)

unjustified criticism

[Note: Under the Criminal Justice Act 1994, the criminal offence of harassment was created. This means that employees who harass or bully can be fined (maximum £5,000) and/or imprisoned (for up to six months). These sanctions were considerably increased by the Protection from Harassment Act which applies to workplaces as well as elsewhere.] 2.

Manager and supervisors are required to act and react to all employees (and any other persons with whom they interface) with respect and dignity (i.e. treat them as they would wish to be treated themselves).

3.

Managers and supervisors are also required to ensure those under their control act in a similar way in their relationships with each other. To this end, they should immediately correct, and apply sanctions against, any unacceptable behaviour.

4.

Managers and supervisors are expected to know and apply both this harassment section of the policy and the whole Dignity at Work policy, and also the complaint procedure, and to ensure that the organisation’s complaint procedure is known to all. They must deal immediately with such complaints objectively and fairly, trying at all times to appreciate the outlook of the complainant. [Note: In discrimination complaints, it is the view of the victim that can be more important than the intent of the perpetrator.]

5.

Managers and supervisors should •

encourage concerns to be expressed rather than sublimated

•

endeavour to stamp out victimization and/or retaliation

•

make employees aware that under the Criminal Justice Act 1994, harassment is a criminal offence punishable by a fine of up to £5000 and/or a prison sentence of up to six months, penalties which were considerably increased by the Protection from Harassment Act 1997

•

be aware that harassment does not necessarily need physical presence – electronic and/or paper based messages can be used to harass


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COMPLAINTS PROCEDURE

When an incident is reported, managers/supervisors must i.

Make a note of the time, date, place and any other relevant data

ii.

Make a note of any witnesses or persons in the immediate vicinity who may not have witnessed the event but may be able to corroborate that the persons involved were at the location at the time

iii.

If the person generating the harassment is –

an employee of the same or junior status, the matter should be reported to the superior of the employee suffering the harassment with an indication of required action

–

superior to, but not the immediate superior of the employee suffering the harassment, the matter should be reported to that immediate superior with an indication of required action

–

the immediate superior of the employee, the matter should be reported to (nominated person) with an indication of required action

iv.

Whenever possible the anonymity of the employee complaining of the harassment should be maintained

v.

The person to whom the complaint is made should record in writing as many details as possible

vi.

Within five working days the person receiving the complaint must report back to the complainant with details of the action taken and any resolution achieved. A précis of the action taken and any resolution must be given to the complainant and a copy held on file. If the solution is satisfactory to the complainant the matter should end there and the notes passed to the Personnel Dept to be held confidentially

vii. If the solution is not satisfactory to the complainant, the matter should be discussed further and an alternative solution attempted to be agreed. This may require the person receiving the complaint to investigate further and to refer the matter upwards viii. In referring the matter upwards, it must be handled by a person not involved with the matter previously and their investigation and subsequent decision will be made known to the complainant within five working days. This decision will be binding and conclude the enquiry internally


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ix.

If, at any stage, at whatever level it is proved or admitted that harassment did take place, the matter must be referred to the superior of the person responsible for the harassment. Since harassment is gross misconduct, it is mandatory that the person responsible is given a formal warning. Depending on the seriousness of the act, this might be a final warning and in extreme cases dismissal may be the only available – and appropriate – sanction

x.

Counselling services on a confidential basis can be provided if required for the victim (and, if appropriate, the harasser)

xi.

If victim and harasser normally work in close proximity, consideration should be given to relocating one or the other or both. Preferably it should be the harasser that should be transferred, since it could compound the discrimination to transfer the victim.

Coverage Discrimination can be alleged by a person with no direct relationship with the organisation; for example, a job applicant. Recruitment, selection and interviewing criteria must be examined to ensure fairness. All applications should be recorded and the reasons for selection (and, more importantly, rejection) shown. A senior person should regularly monitor records to try to ensure appointments are made on the basis of skill, experience and suitability. An obligation not to discriminate is also owed to past employees.

Case study In Coote v Granada Hospitality Ltd, Ms Coote had won a sex discrimination case against her employer, but when she was offered a job by another employer subject to reference, was not given a reference by Granada because she had previously won a case of sex discrimination against them. She claimed that this act was also discriminatory and the EAT referred the matter to the European Court of Justice (ECJ). The ECJ held that member states were required under the Equal Treatment directive to provide protection in such an instance, so she won a second case of sex discrimination against her by her former employer.


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(Granada could have given her prospective employer a reference which included a statement that during her employ she had won a case of sex discrimination against them. Had that prospective employer then withdrawn the offer of a job because of that information, Ms Coote might then have had cause for action against the prospective employer on grounds of sexual discrimination.)

A dignity at work policy seeks to make it a term of employment (as well as being a legal requirement) that employees (as well as the employer) may not discriminate. As such, infringements can be dealt with under the disciplinary procedure. Tribunals try to preserve the anonymity of claimants in such cases and the EAT has suggested that to avoid negating the preservation of anonymity during tribunal hearings regarding sexual harassment, employers should consider protecting such anonymity during internal hearings. The fact that individual employees – as well as employers – can become personally liable to pay compensation should they discriminate, harass or bully, should be made clear to the workforce, as this may assist the prevention of these offences.

Case study In Yeboah v London Borough of Hackney , although the employer had to make a considerable payment (£380,000) to their former employee who had suffered racial discrimination, Crofton, the director who was personally responsible for the acts of discrimination, was personally ordered to pay Yeboah £45,000 plus £14,000 interest (the figure being adjusted on appeal to £32,000 plus £23,000).

Liability If the employer is found not to have complied with the equal opportunities (or dignity at work) requirements, they may become liable to pay compensation (which could be substantial) to prospective employees, employees and/or former employees. It is important, therefore, that policies and procedures to avoid such breaches (including bullying) are promulgated and understood by all involved, are policed to ensure compliance and that, where appropriate, sanctions are applied.


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The sanctions can reflect the seniority of the perpetrator, the degree of intent and whether it was a one-off instance or a series of deliberate acts. The culpability of the employer will depend on the action they took to deal with the complaint and whether they applied sanctions to the perpetrator. Where there was no remedial action, both the employer and employee responsible could be liable to pay damages. However, where the employer has adequate rules which are clearly explained to all employees, and ensures these rules are policed and sanctions are applied to those who transgress, yet harassment still takes place, it may be that the employee would be held solely responsible – a very valuable guide for employers seeking to hold themselves harmless.

Case study In Haringey Council v Al-Azzawi, a colleague referred to Al-Azzawi as a ‘bloody Arab’. He claimed that was racist language and racial discrimination and won such a case at a tribunal. Haringey appealed to the EAT which allowed their appeal on the basis that Haringey a)

put every recruit through a diversity training programme requiring them to have respect for all other employees regardless of race, sex, age, religion, sexual orientation etc.

b)

immediately gave the person who uttered the words a warning and made him apologise to Al-Azzawi and commented that ‘what else can a reasonable employer do?’.

Bullying Whilst harassment is normally taken to refer to sexual advances, talk or innuendo, bullying can relate to a whole range of other activities which, unless checked, could result in serious injury – and become the liability of the employer (since they are held responsible for what occurs in the workplace). Bullying and harassment, whether it is on racial, sexual, sexual orientation, religion, age and/or disability grounds, is discrimination. Under the Prevention of Harassment Act 1997 these criminal penalties can be applied to offenders. The latter act has not been used to any great extent – but it has been used


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Case study An employer, despite prohibiting bullying, can still be held liable when one employee harasses or bullies another. In Majrowski v Guy’s & St Thomas’s NHS Trust the Court of Appeal held that it was possible for an employer to be held vicariously liable for the acts of its employee (who in this case had harassed Majrowski for 18 months). The case was argued not under discrimination law but under the Protection from Harassment Act. This Act does not define harassment and thus the Courts have power to widen its ambit as they did in this case.

The number of cases in respect of bullying is reported as having increased, leading to the contention that bullying itself is on the increase. This is unlikely and it may be that it is the number of those prepared to complain that has increased. In either case, responsible employers need to ensure it does not happen. ACAS defines bullying as: ‘a pattern of offensive, intimidating, malicious, insulting or humiliating behaviour; an abuse or misuse of power or authority which attempts to undermine an individual or group of individuals, gradually eroding their confidence and capability which may cause them to suffer stress’; and gives as examples of bullying or harassing behaviour: •

spreading malicious rumours or insulting someone by word or behaviour (particularly on the grounds of race, sex, disability, sexual orientation and religion or belief)

•

copying memos (including e-mails) that are critical about someone to others who do not need to know

•

ridiculing or demeaning someone, picking on them or setting them up to fail

•

overbearing supervision or other misuse of power or position

•

making threats or comments about job security without foundation

•

deliberately undermining a competent worker by overloading and constantly criticizing them

•

preventing individuals progressing by intentionally blocking promotion or training opportunities.

The list is not meant to be exhaustive.


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Employers should ensure their anti-discrimination policies are revised, specifically to outlaw harassment and bullying. It might be best to provide every employee with a copy and to remind them that such behaviour is not only a disciplinary breach, but is also a criminal offence which could lead to prosecution and, if found guilty, to imprisonment and/or a fine. The Criminal Justice Act defines bullying as, ‘with intent, causing a person harassment, alarm or distress by using threatening, abusive or insulting words or behaviour, or disorderly behaviour or displaying any writing, sign or other visible representation which is threatening, abusive or insulting’. The European Community has advised that employers should adopt a policy on this problem and should take a proactive role in ensuring that it is avoided – or at least minimised.

EU suggestions 1.

Advise staff what constitutes harassment or bullying, and make it clear that it is unacceptable

2.

Provide a complaint process

3.

Ensure managers know it is their responsibility to ensure harassment does not occur

4.

Ensure all employees know both policy and complaint process

5.

Ensure the complaints process is clear and user-friendly (and the confidentiality and anonymity of the complainant is protected)

6.

Provide counselling facilities

7.

Investigate all complaints swiftly and fairly

8.

Apply sanctions against those responsible.

A ‘Guide to Combat Harassment’ is available from ISCO, 5, The Paddock, Frizinghall, Bradford, BD9 4HD. The Chartered Institute of Personnel and Development (Tel 0208 971 9100) has also produced a booklet on the subject.


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Avoidance or control Since everyone must be made aware of their responsibilities, employers may need to coach employees to understand what constitutes what might normally be regarded as offensive and illegal. One company suggests the following tests in deciding whether a particular conduct or wording is potentially sexually harassing: a)

Would you say or do this in front of your parents and/or spouse/ partner?

b)

Would you say or do this in front of a colleague of the same sex?

c)

Would you like to see a report of your behaviour or words appear in the local newspaper?

d)

Does what is being done or said need to be said or done at all?

Supervisors and managers have an obligation to ensure everyone acts in accordance with the employer’s Dignity at Work policy. Thus they need to: a)

Act and react to all employees (and other persons with whom they interface) with respect and dignity

b)

Correct, and apply sanctions against, any unacceptable behaviour

c)

Know and apply the [organisation‘s] policy

d)

Ensure the [organisation‘s] complaint process is known by all

e)

Deal immediately with such complaints objectively and fairly

f)

Try to appreciate the reactions of the complainant

g)

Encourage concerns to be expressed rather than sublimated

h)

Endeavour to stamp out victimisation and/or retaliation.

The culpability of the employer will depend on the level of action they took to deal with the complaint and to apply sanctions to the perpetrator. Where there was no remedial action both employer and employee responsible could be liable to pay damages. However, where the employer has taken all reasonable steps to try and stop bullying or harassment, then they may escape liability. Harassment and bullying offend good employment practice, detract from efficiency and productivity and could place the victim under stress, which can itself be grounds for a liability claim against the employer. The traditional concept of a bully is a strong person, whilst the person being bullied is not as strong (either physically or mentally – or both). This, however, is not always the case and is further complicated by the fact that some who are bullied are bullies


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themselves. Not all bullying is continuous – pressure or stress on a person may make them respond by bullying others, almost as an instinctive reaction. Whilst this kind of spontaneous reaction may be understandable, it needs to be guarded against, although long term and systematic bullying poses a much more difficult problem, particularly when others join the bully and are oppressive to the target. Retail organisations may need to support employees who are bullied by customers or others seeking to exploit the ‘harnessed’ reaction of those seeking to serve or assist them. Whilst a customer may have a legitimate complaint against the organisation, those in the direct firing line are hardly likely to be either those who have caused the problem or more importantly those who can resolve the complaint. Hence such staff should be briefed in how to handle irate and angry customers – an immediate apology and apparent intent to assist may defuse many situations, although it will be insufficient for some. Failure to accept their responsibility in this area will effectively make the management and organisation an accessory to those who seek to bully. In two recent cases, both settled out of court, employees won substantial sums from their employers as a result of stress caused by bullying.

Case studies From her employer, Liverpool City Council, Mrs Noonan won £84,000 for stress brought about by bullying instigated by a colleague – later her junior. From her employer, Birmingham City Council, Mrs Lancaster was awarded £67,000 for stress brought about by her having to deal with aggressive council house tenants following her transfer without training into that department.

Evidence It can be difficult to obtain evidence of bullying since those suffering may be wary of giving evidence, fearing (unless the instigator is dismissed) that it may make the position worse. If witnesses have such a fear, it is possible to use written statements at a hearing without identifying their source provided the employer has checked as far as possible that the statements are true.


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Case study In Ramsay v Walkers Snack Foods (a case concerning theft but the principle is the same) three employees were dismissed for the theft of money from bags of crisps used for a national promotion. The evidence was derived from a number of statements from other employees who wished to remain anonymous. The EAT held that the employer had acted fairly to balance the ‘desirability to protect informants who are genuinely in fear’ with providing a fair hearing for the accused employees.

Witnesses giving evidence (either in person or by writing) have no right to be told the decision of the hearing. If they ask they should be told ‘the complaint was founded (if it was) but the employer cannot discuss the outcome of a disciplinary hearing’. The Work Foundation (formerly the Industrial Society) (0207 479 2000) and the Trades Union Congress (0207 636 4030) have recently jointly produced a video, ‘No excuse: Beat bullying at work’.

Practical implications Harassment and bullying at work is thought to resemble an iceberg – only a small proportion being visible and complained of whilst the vast bulk of such problems remain hidden and unreported. Even if this is so, the actions taken as a result of harassment tend to have a high profile and to attract large sums of compensation. For some time it was believed that a person could claim compensation from their employer as a result of harassment by someone in the employer’s service even if the act was a one-off (indeed in more than one tribunal hearing this was held to be the case). However, in Banks v Ablex Ltd it was held that harassment on one occasion would not be sufficient basis for a claim – the same person had to be the victim on at least two occasions for an employer to be held liable.


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Social events Whilst ensuring compliance by employees with the letter and theme of the Dignity at Work policy should be feasible in the workplace and during working hours (albeit posing difficulties with multi-site organisations), the liability of the employer can be extended outside the workplace and even into social activities if these are held to be ‘an extension of the workplace’.

Case study In Stubbs v Chief Constable of Lincolnshire Police, a female police constable was sexually harassed by a male colleague on two occasions when the team of which they both were part adjourned at the end of their shift to the local pub. Since the team invariably went to the pub at the end of the shift, the tribunal held that the pub had become ‘an extension of the workplace’ and the employer was liable for breaches of conduct there as much as in the workplace.

Similarly, employers can be held liable for claims resulting from inappropriate activities of employees (and their guests) at parties, dances etc., if the only reason for the participants (or most of them) gathering is that they are employees. This can be regardless of location and who pays for it, hence the employer could be deemed to be required to provide a ‘safe place of work’ there – and liable for any breach of that obligation. In ‘Watching the English’ Kate Fox, a social anthropologist, in reviewing ‘goings on’ at workplace Christmas parties’ writes ‘[people] misbehave because misbehaviour is what Christmas parties are all about: misbehaviour is written into the unwritten rules governing these events.’ However she goes on to point out that there is nothing particularly depraved or wicked, ‘just a higher degree of disinhibition than is normally permitted among the English’. Unfortunately, as far as employers are concerned, it is exactly this ‘degree of disinhibition’ that is a matter of concern, particularly as Ms Fox records that in her survey 90% of respondents admitted to some form of misbehaviour at their employer’s Christmas parties! Without wishing to restrict enjoyment, it may be advisable to issue a warning memo or notice well in advance of the proposed celebrations with a reminder immediately adjacent to the timing.


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Example of warning clause 1.

The [organisation] in sponsoring [event] hopes every employee [and guest] will find it enjoyable and that they will appreciate that the following guidance is meant to attain that aim for everyone. At all such events (whether we sponsor them or not) at which the attendance is related to the fact that those present – or some of them – are our employees, all employees and their guests are expected to act in accordance with this guidance.

2.

At such an event the normal rules and guidelines regarding attitude and behaviour in the workplace apply – particularly rules regarding substance (including alcohol) abuse, harassment, discrimination etc.

3.

Moderation and a consideration and respect for others are expected at all times.

Breach of these guidelines cannot be tolerated and will render employees responsible, subject to disciplinary action, and non-employees open to claims for any losses sustained by the [organisation] as a result of their actions. 4.

All persons in a position of authority must remember their workplace responsibilities. Whilst being relaxed and informal, they should not act in any way such that their position and/or respect will then or subsequently be undermined.

5.

Drivers are reminded of the legal requirements regarding consumption of alcohol – particularly if also taking medication.

Alcohol The reminder about not driving whilst having consumed alcohol in excess of the legal limit is perhaps obvious. However, employers could be held liable if, for example, they provide a ‘free bar’ with no control placed over the number of drinks consumed.


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Case study A brewing company operated a residential training facility. After the day’s training had finished the delegates could use the free bar on the premises. Some delegates drank too much and a fight developed during which a manager was attacked. The company dismissed the three employees who had attacked the manager but they were able to claim successfully that this was an unfair dismissal. The point was made that if a company provides a free bar without control over consumption they can create a situation where excess consumption is almost inevitable – as will be the results.

Note: This is perhaps a classic case for an argument of contribution on the part of the employees – that is that they must be held at least in part responsible for their actions. If contribution is accepted by the tribunal, the level of responsibility (0% to 100%) must be assessed by the tribunal. If it is decided there was100% contribution, any compensation is reduced by 100% (that is, it is completely wiped out).

Equality Act 2006 This Act introduces a duty (which has been described as a ‘gender duty’) requiring public bodies to take account of the differing needs of the sexes to try to ensure fairness and equality of opportunity, not only as employers but also when preparing policies and providing services. The Act establishes the Commission for Equality and Human Rights (referred to above) and – makes discrimination on grounds of religion or religious belief unlawful for those providing goods, services, facilities, premises, education and other exercise of public functions – requires public authorities to promote the equality of opportunity between the sexes and to prohibit sex discrimination in the exercise of their public duties – provides powers that will enable the outlawing of sexual orientation discrimination when providing goods, facilities and services. An Equalities Review has been charged with the task of examining the root causes of inequality and how they can be tackled, whilst the Discrimination Law Review is to examine the effectiveness of anti-discrimination legislation and to identify gaps in the anti-discrimination legislative enactments. The effect of the two reviews is expected to lead to a single Equality Bill, rationalizing all the anti-discrimination legislation in one enactment.


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Questionnaires Those who believe they may have been discriminated against can serve a questionnaire on the perpetrator. Care needs to be taken when completing such a questionnaire. Accuracy of response is necessary since, if it can subsequently be shown that there are incorrect answers, the strength of any defence of an accusation of discrimination may be weakened. Contrary to a somewhat widespread misinterpretation, the Data Protection Act does not preclude employers from answering questions posed by such questionnaires.

‘But for…’ One of the best tests an employer can apply in a potentially discriminatory situation is to use the ‘but for’ phrase. This idea is quite often used in tribunal hearings. If the question ‘but for this person being of a certain race/gender/sexual orientation/disability/religion/age, would we be treating them in this manner?’ is put and the answer is ‘no’, then almost certainly that could be a discriminatory situation, and accordingly the action should not be taken or the person treated in that way.


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Chapter 2 Sex and Sexual Orientation Discrimination A. Sex Discrimination – introduction ................................................23 Harassment ..........................................................................................25 Equable treatment ..............................................................................27 References ............................................................................................28 Maternity ..............................................................................................29 Risk assessment ...................................................................................30 Flexible working ..................................................................................33 Increasing parental rights ..................................................................36 Discrimination against males .............................................................37 B. Sexual Orientation discrimination ................................................38 Gender change.....................................................................................38 Administration ....................................................................................39 Unforeseen effects ...............................................................................40 The ‘but for’ test...................................................................................41

Chapter 2 Sex and Sexual Orientation Discrimination

A. Sex Discrimination – introduction An employer must not discriminate (or harass, victimise, or bully etc) either directly or indirectly against a person on grounds of their gender (or, if female, because she is pregnant or a new mother). Equally, an employer must not allow their employee(s) to discriminate, harass etc. colleagues. If an employer becomes aware that an employee is discriminating against another, they should take action immediately and, if appropriate, apply sanctions against the instigator – failure to do so means that the employer may also be guilty of discrimination. This legislation has been in force for 30 years yet there are still employers who run foul of it – usually by discrimination against women.

Case studies 1.

In a well-publicised American case, finance house Morgan Stanley paid £29 million to settle a class action brought by over 300 women regarding widespread sex discrimination in the workplace.

2.

£200,000 was awarded to Tania Clayton, a former female firefighter, following five years of bullying and harassment by her colleagues in Hereford and Worcester Council’s firefighting service. She was also awarded £100,000 costs.

3.

In at least two case of sex discrimination against City of London money houses, compensation for sexual harassment and discrimination in excess of £1 million has been awarded.

In February 2006 the latest report on female equality in employment was published by the Women and Work Commission. It concluded that despite the 30 year old equality legislation many women were still working below their abilities and that the aim of ‘equality of pay for equal work’ was still far from being achieved.


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Originally the employee was obliged to prove that there had been discrimination but the burden of proof has now been changed. Once the employee has shown there could have been discrimination, to escape liability the employer must show that there was no discrimination. This can be difficult as employers are effectively being required to prove a negative. To avoid claims (and escape liability) an employer should a)

ensure everyone has a copy of the Dignity at Work policy – and has had its implications and requirements explained to them (see Chapter One)

b)

provide a complaints procedure – which may need to have a confidentiality process (since many complaints of sexual harassment are made against the immediate superior of the employee using their ‘power position’)

c)

ensure swift and comprehensive investigation of any complaints

d)

apply sanctions where the complaint is proven.

If the employer can show that they instructed or counselled all their employees not to discriminate or harass, the employer may escape liability – but the employee may not. Conversely, if the employer does not instruct or counsel the employees, then they may find they are jointly liable.

Case studies In Enterprise Glass Co Ltd v Miles, a male shop floor supervisor who had sexually harassed a female colleague was ordered to pay £750 to her, whilst the employer was ordered to pay her £1,000. In a case brought by a waitress against her restaurant employer (Times 30.3.06) she was awarded £124,000. The chef used to walk round the kitchen in his underpants and referred to her in crude terms. The whole atmosphere was reported as being heavy with sexual overtones. Islington Council paid Adenike Johnson £15,000, plus a contribution to her costs, when she had to give up her painting and decorating job with the Council because she was subjected to sexual abuse, assault and bullying by fellow employees. Conversely in Caspersz v Ministry of Defence, an employee complained of harassment by her manager. The employer investigated immediately and later demonstrated to the satisfaction of an employment tribunal that it had previ-


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ously introduced a Dignity at Work policy which managers (including the harasser) were responsible for implementing. Accordingly the employer was not held liable leaving the victim only able to claim against the manager himself.

Harassment Flirting is very common in society – indeed without it, it is arguable that the human race would come to a swift end! Of course flirting also goes on within the employment environment – and can be fun for both parties. It ceases to be ‘fun’ or enjoyable, however, when one of the parties feels intimidated, threatened or bullied by the words or actions. Harassment is defined as ‘unwanted conduct which has the purpose of (a) violating [a person’s] dignity or (b) creating an intimidating, hostile, degrading, humiliating or offensive environment for that person’, and could consist of •

indecent or suggestive remarks including comments about clothing (or lack of it that might be preferred).

Case study In Driskel v Peninsula Business Services Ltd (a firm of employment law advisers), Ms Driskel described how her manager suggested the day before her appraisal interview that, at that discussion, she should wear a short skirt and a low-cut or see-through blouse – the inference being that doing so would further her chances of a favourable appraisal. The EAT held that the ‘lewd words’ acted as a detriment.

•

comments concerning sexual activity or about a person’s body

Case study In Weston v Merrill Lynch, a colleague split red wine down Ms Weston’s top and made comments about her breasts and sex life at a Christmas party. He admitted to telling her she had a ‘great cleavage’. Ms Weston claimed sexual


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harassment, victimisation and constructive dismissal against her employers and agreed a £500,000 settlement out of court.

•

displaying pornography in the workplace and/or downloading images from the Internet and distributing them electronically or in hard copy within the workplace

•

using hard copy or e-mail to circulate obscene material (In order for employers to avoid compensation claims from those who have been pestered by such images by their colleagues, employers must be able to show that they took all reasonable steps to prevent such harassment. See the draft Electronic Communications policy in Appendix 2)

•

inappropriate touching or contemplating (e.g staring at) a person of the opposite sex

Case study In R v Wakefield and Lancashire, Lancashire considered himself the office jester and several times sexually touched and harassed a woman working for him. She complained to his boss, Wakefield, but he too indecently assaulted her. They were both prosecuted and given prison sentences of 12 and 21 months. The judge commented that this was a serious case of sexual bullying which was both humiliating and degrading. Lancashire was described as a cowardly bully whilst Wakefield was in a position of authority and knew of the incidents yet did nothing about them. He concluded that ‘women were fully entitled to be protected from such treatment’. Many employees do not realise that not only is such sexual harassment an offence under their employer’s disciplinary procedure but that it is also a criminal offence under the Criminal Justice Act 1994, the penalties under which legislation were enhanced by the Protection from Harassment 1997.

•

winking suggestively at a person, brushing against them deliberately, blowing kisses, pinching, hugging, patting or caressing and/or fondling

•

requests for sexual favours


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Case study In HM Prison Service and ors v Davis, a female employee was at home when she was visited by a male colleague who made unwanted sexual advances. She complained to her employers and to the police who initiated criminal proceedings. Her employers provided counselling and assisted with the police enquiries. However, after the Crown Prosecution Service decided not to proceed with any criminal action, her employer did not initiate action against the male employee for six weeks. The EAT held that although it was acceptable for an employer to wait for the determination of criminal proceedings, delaying subsequent internal proceedings for six weeks was itself discriminatory.

Equable treatment There is a danger that in attempting to eradicate harassment (or perceived harassment) and to protect employees from any recurrence, that employers may go too far and actually create harassment of their own.

Case study In Devon Fire and Rescue Service v Owers, a female employee made 16 claims of sexual harassment against her controller. Six of the claims were investigated and the controller was cleared. Nevertheless the employee was awarded £750 and continued working. The employee then harassed the controller and, when he complained of this, the employer did nothing. A personnel officer informed him that had he been a woman the situation would have been handled differently. A tribunal decided that the employer’s actions constituted unlawful sex discrimination against the controller.

WARNING: Under the Sexual Offences Act 2004, the boundaries of relationships between the sexes in the workplace are better defined, which should leave those responsible for administering and enforcing the law better equipped to deal with sexual harassment at the workplace. These instances (often described as ‘harmless fun’ by the perpetrators) are unacceptable and may now generate far more serious sanctions. For example, the old offence of ‘indecent assault’


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has been replaced by ‘sexual touching’. A person who touches a member of the opposite sex in an intimate gesture could not only be subject to disciplinary action (e.g. dismissed for gross misconduct) from their employer, but also could find that under this Act they are placed on the sex offenders register and have a criminal record.

References There is no legal requirement on employers to provide a reference for any former employee. However, refusing to give a reference purely on discriminatory grounds could prove costly.

Case study In Coote v Granada Hospitality, whilst working at Granada Ms Coote brought and won a case of sexual discrimination against her employer. Later she left and applied for a job elsewhere and her prospective employer offered her a job subject to reference. They applied to Granada for a reference but Granada refused to give her a reference because she had won the case of sex discrimination. The case went to the European Court of Justice who stated that failure to provide a reference to a former employee was discriminatory and Ms Coote was awarded further compensation. The total she was awarded was just under £200,000.

The Coote case demonstrates that an employer could be liable for discrimination even after a claimant has left their employ. Other cases have come to the same conclusion.

Case study In Rhys-Harper v Relaxion Group, the House of Lords held that, if there was an act of discrimination, even though this took place after the employment relationship had terminated, an ex-employee could succeed in claiming compensation against a former employer. The EAT followed this principle in Metropolitan Police Service (MPS) v Shoebridge. Mr Shoebridge had left the MPS and worked for another


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employer for 14 months. Suddenly his new employer terminated his contract and this was allegedly due to unsolicited and discriminatory statements made by the MPS to his new employer. Mr Shoebridge successfully claimed victimisation and the appeal by MPS against this decision was dismissed.

Maternity Obviously one area where a considerable amount of discrimination against women can take place revolves around pregnancy and maternity. A survey in 2006 disclosed the worrying statistic that nearly 50% of women who told their employers that they were expecting a baby were dismissed virtually immediately. This is clearly sex discrimination and 30 years after the law was introduced it is staggering that there should be such a massive incidence of illegal actions. Pregnant employees have very clear rights and complaints about a breach of these should have led to countless tribunal cases and awards. Since the number of tribunal cases on such grounds is relatively small, why more of such disadvantaged women did not take such action is curious. Obviously, whilst some of them might not have felt up to the task of taking on their employer in a tribunal, surely this could not be true of all? Such attitudes are direct sex discrimination but employers can also discriminate against pregnant women and/or new mothers indirectly and, charitably, even unintentionally.

Case studies In Visa International Service Association v Paul, it was held that it was discriminatory for an employer to fail to inform a woman of a job opportunity – even though she would probably have been unsuitable for the job – whilst she was on maternity leave. This was probably unintentional but underlines the need to keep in touch with employees during their maternity leave (when, of course, their contract continues). To some extent this challenge is addressed in one of the proposals in the current Work and Families Bill: women will be encouraged to visit their place of employment regularly so that they can be told of changes and keep their knowledge and skills updated – at least to a limited extent.


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In Ministry of Defence v Williams, it was held that failing to allow a pregnant woman to attend a training course for which she had been selected previously, and which could have led to her promotion, was discriminatory.

Risk assessment Under the Management of Health & Safety at Work (Amendment) Regulations 1994, employers must carry out a pregnancy risk assessment in anticipation of a woman of child bearing age entering their employ. Failure to provide such an assessment is a detriment under the Sex Discrimination Act 1975 (the decision of the EAT in the Day v T Pickles Farms Ltd case). Since women may work in many areas in the workplace, the risk assessment may best be done in general terms applicable to all areas and supplemented by specific risk assessments which may have to be generated on a job by job basis. Immediately an employee states that she is pregnant she should be given a copy of the risk assessment(s) applicable to the areas in which she works, and possibly invited to advise the employer should she perceive other risks that need to be addressed or at least identified in the assessment.

Case studies Julie Kitson was the tiger keeper in the South Lakes Wild Animal Park in Cumbria. One of her tasks was to place raw meat on the top of a 20ft ‘flagpole’ in the enclosure for the tigers’ ‘feeding display’ each afternoon. Having had her pregnancy confirmed by her doctor, who told her not to climb ladders or to shin up flagpoles, she informed her employer. She was told that she was no good to the employer unless she could ‘jump fences and climb ladders’. She was awarded £30,000 compensation for sex discrimination. In Brocklebank v Silveira, the fact that an employment agency had failed to carry out a risk assessment before sending a ‘temp’ to a client was held to be sex discrimination.


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In such circumstances it is essential that there is a positive approach and a proper risk assessment is drawn up. If a woman can no longer carry out her job because of the risks, she must be given a suitable alternative job, and if one is not available then she must be suspended on pay from work.

Example of general risk assessment INTRODUCTION

The HSE has identified several risks to pregnant women in the workplace but these should be taken as guidance only since each employer should identify the particular risks related to their own operation. THE RISKS

A. Working with unhealthy substances Perhaps the most widely encountered dangerous substance with which a pregnant woman and/or new mother might come into contact is lead. Any use of lead should be identified and women of child bearing age prohibited from working anywhere near its use or from handling products which have been in contact with lead. (Similar restrictions apply to a range of other substances – e.g. radioactive material.) B. Violent or stressful environments What some people find acceptable, others may find stressful – e.g. some people can stand loud music, others cannot. The environments within which people work should be assessed and those working in areas felt to be potentially stressful should be specially advised, and if and when a woman states she is pregnant, she should be asked if she wishes to transfer elsewhere. The situation of a pregnant or new mother working within an environment which is ‘macho’, ‘rough’ or ‘tough’ or in any way violent, needs to be assessed very carefully with specific guidance depending on individual problems and risks. C. Lifting Employees are generally prohibited from lifting loads heavier than around 55lbs without manual or mechanical assistance. However, applying this weight restriction could be unwise for most pregnant women and a more realistic maximum load may perhaps be 4 kilos or 10lb. The volume of a package is also important since a bulky (but light) object might pose considerably greater danger than a smaller (but heavier) item.


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D. Confined working space The simple increase in body size due to pregnancy can create problems of its own if the working environment is at all confined or small, or there is a restricted access etc. Such items should be identified. If it is impossible to change them, the possibility of the woman working elsewhere should be considered. E. Using an unsuitable workstation A considerable proportion of women use visual display units. The ergonomic arrangement of such equipment may often leave much to be desired. Whilst this may be acceptable in the ordinary course of business, there may be specific dangers to a pregnant woman whose condition requires careful attention to posture etc. Notes: 1.

In addition to the above ‘general’ risks, employers would need to customise the above and also consider risks specific to the areas used by each woman.

2.

The Equal Opportunities Commission reported that in one year there were 1,387 maternity related discrimination claims regarding breaches of Health and Safety legislation (96% of the discrimination claims). The average compensation claim paid was £9,871.

Case studies 1.

In Bunnings v GT Bunning & Sons Ltd, Ms Bunning worked as a welder. When she became pregnant she informed her employer that she did not feel safe continuing to work in the welding department. The employer conducted an ‘inadequate’ risk assessment and stated she should continue to work as normal. They then compiled another ‘defective’ assessment and offered her a job in the stores which she accepted and carried out until she miscarried. She complained of her treatment and, when the company ignored her complaints, resigned and claimed unfair constructive dismissal. Although both an ET and the EAT rejected her claim (mainly since having accepted the job in the stores, she was held to have accepted the situation) she won a right to appeal to the Court of Appeal on the basis that the failings of her employer went to the root of the contract, that is, breaching its duty of trust and confidence, entitling her to resign and make an ‘unfair dismissal’ claim.


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2.

In Hardman v Mallon (t/a Orchard Lodge Nursing Home), Mrs Hardman was a care assistant which required her to lift and/or support patients. When she became pregnant, her medical adviser issued a certificate that she should refrain from heavy lifting. She attended a meeting to discuss the preparation of a risk assessment but one was not prepared. Her employer offered her an alternative job as a cleaner. She refused. The cleaning job was offered again and again she refused. Her complaint of sex discrimination was upheld by the EAT which stated a)

she had suffered less favourable treatment, the cause of which was her pregnancy and

b)

the employer had breached the requirement to conduct a risk assessment and this was a detriment she had suffered.

Flexible working There is no legal right for an employee to work flexibly. The right is for those with a year’s service and with parental responsibility for children up to age six (or 18 if the child is disabled) to have a request to change their hours considered ‘objectively’ by their employer. An employer can reject such a request on the following bases: •

burden of costs on the employer

•

problems meeting customer demand

•

an inability to reorganise the work

•

problems meeting quality levels

•

problems meeting performance output

•

inability to find other employees to cover any hours not being worked

•

reasons specific to the employer.

Within four weeks of the request, having carried out an assessment of the effect on the business, the employer must hold a meeting with the employee to discuss the matter and then within another two weeks must give the employee a decision. If the request is agreed, the change is permanent (although an employer could always waive this legal stipulation). If the request is rejected, the employee can make the same request a year later.


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WARNING: Rejecting such a request even on the stated reasons could still give rise to a complaint of sex discrimination.

Case studies 1.

In British Airways v Starmer, BA was held to have indirectly discriminated against a full-time airline pilot with childcare obligations by refusing to allow her to halve her hours. They could not justify their decision on the bases of additional costs, impact on customer service, lack of resources or safety considerations. However, BA (which is appealing the decision) is a large company and a smaller organisation might have been able to successfully defend such a decision on one or more of those bases.

2.

In Herbert Smith v Langton, a new mother who worked part-time when returning from maternity leave was put under pressure to resume working full-time by her manager at the international law firm. They also allegedly told her that her future career at the firm depended on ’whether she was planning to have any more children’. The employer (who are appealing the ruling) was held by the EAT to have discriminated against her (but not to have victimised her).

3.

In Dillon v Rentokil Initial UK Ltd, on returning from maternity leave, Ms Dillon proposed a trial period working her normal hours when her husband was at home (looking after the baby) and shorter hours when he was working (although on these days she could make herself available for assistance at the end of a telephone line at home). Her proposal was rejected out of hand by her employer who stated that she either worked her normal hours or none. Dillon resigned and successfully claimed unfair constructive dismissal and sex discrimination. The tribunal stated that any reasonable employer would have allowed her to work the proposals on a trial period.

Flexible working arrangements are numerous and a number are set out in Appendix 3. Inevitably requests for flexible working will proliferate. Initially it has been reported that 87% of such requests have been met by employers. However, at present it may be relatively easy to allow an applicant to work flexibly – since most organisations have some capacity to cover one person’s ‘short working’. However, as the number of applications proliferate, employers may


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find it more difficult to accommodate later requests and will feel they have to reject them. This could open them to claims of unfair treatment – ‘you said [that parent] could work part-time, why can’t you let me?’ – which may be difficult to answer. Further, as more people want to work the hours that are convenient to them (rather than those wished by the employer), increasingly there will be a demand for part-timers to cover afternoon and later hours (since most requests will be for the employee to work only the mornings). Ultimately this could lead to a requirement to pay a premium rate in order to attract people to cover the later hours. The immediate reaction to this is that since ‘burden of costs’ is one of the reasons for rejecting a request, the employer is safe. This may not be so for very long however.

Case study In Steinicke v Bundesanstalt fur Arbeit, and Kutz-Bauer v Freie und Hansestadt Hamburg, the European Court of Justice held that the fact that part-time working might increase an employer’s costs could not justify discrimination against such workers. The effect of these two decisions, from what is the UK’s ultimate court, could be that simply rejecting requests for flexible working on grounds of costs could be unsafe.

Many employers may regard requests for flexible working with some degree of horror. However, if positively assessed and planned for, benefits may be able to be obtained.

Case studies 1.

Farrelly Engineering and Facilities took a constructive look at its high employee turnover and came to the conclusion that the main cause was their long hours. The company decided to cut working hours to 8.30 – 5.00 p.m. (4.00 on Friday) with complete flexibility for family and domestic commitments. Company director/owner Stephen Farrelly stated that ‘People aren’t stressed – they’re more refreshed and staff turnover has been dramatically reduced – sales figures have now more than doubled; we don’t compete on price we compete on people.’


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2.

At the opposite end of the ‘number of employees’ spectrum Tony DeNunzio, Chief Executive of Asda, claims that that company’s flexible working practices had contributed greatly to a £4 million reduction in absence costs, have acted as a key retention tool and are a significant inducement in attracting recruits. Asda employees can swap ‘shifts’ for family or domestic reasons, ‘swap stores’ where students work in one shop and in holidays return to their main home and even have ‘grandparents leave’ for older workers. De Nunzio claims that the success of the process is simply due to the fact that it is ‘based on what colleagues want and need’.

3.

McDonalds have introduced a novel ‘any member of the family can work the required shift’ arrangement. They allow any member of an employee’s family to work the required shift. Presumably all designated members have to be processed as employees first but it does grant flexibility within the family.

Increasing parental rights The Work and Families Bill will, when enacted, require the following alterations to the existing rights for those with parental etc. responsibilities: a)

extending paid maternity leave from 26 to 39 weeks (effective April 2007) and allowing maternity leave to start on any weekday

b)

granting all employed women the right to 52 weeks maternity leave

c)

extending those eligible to request their employers to consider flexible working to cover those with ‘caring’ responsibilities

d)

introducing ‘in touch’ days; that is days when a woman on maternity leave can come back to work for ‘a few days’ without losing her maternity pay

e)

allowing employers to keep in ‘reasonable’ contact during maternity leave

f)

extending (i.e. doubling) the period of notice of intended return – that a woman must give her employer – from four to eight weeks. Women will also be encouraged to inform their employers earlier if they do not intend to return.


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g)

extending paid leave for adopting couples in line with those for maternity/paternity.

It has also been proposed that paternity leave should increase from one or two weeks to as much as 27-28 weeks – with half being paid and the remainder unpaid. Whilst that proposal is fairly straightforward, the initiative is delayed since it is required to allow mothers and fathers to exchange unwanted parts of each leave between them which could create a major administrative problem for employers.

Discrimination against males Whilst, perhaps inevitably, most of the effect of this legislation has been and is to protect women, if a male has been discriminated against, he has the same rights to bring a claim.

Case study In Riley v Base (t/a GLI Heating) the (male) employer used his ‘apprentice correction stick’ to beat a male apprentice on a number of occasions. On appeal Mr Riley argued that the employer would not have treated a female apprentice in the same way (a statement with which the employer agreed) and the employer was accordingly found to have sexually discriminated against Mr Riley.

Note: The Women and Work Commission report (‘Shaping a fairer future’) referred to above made a number of recommendations including: •

that there should be better careers advice challenging gender stereotypes

•

creation of a Quality Part-time Work change initiative to help open up more senior jobs to part-time and flexible working

•

training facilities enabling women to raise their skill levels

•

provision of funding for equality representatives

•

consideration of tax incentives for small firms to reduce the cost of part-time or flexible workers.


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B. Sexual Orientation discrimination Since December 2004 it has been unlawful to discriminate on grounds of an employee’s sexual orientation. Employers (and those they employ or direct) must not: •

treat workers less favourably because they are or are perceived to be gay, lesbian, bisexual or heterosexual

•

subject workers to harassment (in which regard employers are responsible for the acts of their employees) because of their sexual orientation

•

discriminate against a person after their employment has ended on such grounds (e.g. not providing a reference because a person is, for example, gay).

Employers may need to assess whether there is a genuine occupational requirement (GOR) for certain jobs. For example, in certain countries homosexuality is illegal, and it would seem to be acceptable to employ only a person who is heterosexual for work in those countries. There could be an added dimension in this area. If an employee has a son or daughter (not working for the employer) who is gay and their parent is bullied or made fun of or harassed by their colleagues because of the sexual orientation of their child, that could be sexual orientation in the workplace unless the employer (knowing of it) takes action to stop it. Note: Employers asking for details of ‘Maritial status’ on applications forms should change this to read ‘Marital/Civil Partnership status’ (to avoid claims of sexual orientation discrimination). It may be preferable not to make such an enquiry but to ask for details of ‘next of kin’, which is presumably the only reason for asking such status.

Gender change The Sex Discrimination (Gender Reassignment) Regulations 1999 prohibit discrimination against persons who change their gender. In this context discrimination occurs when a person is treated less favourably than another on grounds that he or she is to undergo, is undergoing or has undergone a gender change. Compensation for claims under the regulations, which amend the Sex Discrimination Act, are, like claims under the Act, not subject to any maximum limit.


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Under the Sex Discrimination Act employers were and are able to discriminate where there is a genuine occupational qualification which predetermines that only a person of a particular sex should carry out the job. Similar exceptions apply to these regulations. Thus, a person subject to gender reassignment could be denied working: •

with vulnerable persons with personal services promoting their welfare where the gender reassignment would (in the reasonable opinion of the employer) render such services ineffective

•

where intimate body searches are a required part of the work

•

where the person works or lives in a private home and there may be reasonable objection to the inevitable social contact

•

where there are reasonable objections on grounds of decency and privacy and the employer cannot be reasonably expected to make alterations etc.

The incidence of such reassignments, now there is protective legislation, can be expected to increase and employers need to be ready to treat the complications created by such actions with tact, consideration and creativity.

Administration There are relatively few instances of gender change and many employees may find it difficult to accept that the person who (for example) was a man is now a woman and vice versa. Because a person has changed gender, obviously they will wish to be accepted as a person of their new gender. This inevitably will mean that they will wish to use the cloakroom facilities of their new gender. However, other employees may well object to finding (for example) a person they formerly knew as a man in the female cloakroom. Conversely, the male employees may well not wish to accept their colleague who now wishes to be accepted as a woman continuing to use their cloakroom. This was a problem faced by Royal Mail; they compromised by suggesting that the employee who had changed gender should use the unisex toilet for disabled employees. The only person who objected was the employee whose gender had changed, who claimed discrimination. The claim was unsuccessful however since the tribunal felt that Royal Mail’s suggestion was an entirely sensible one. In due course, everyone would grow used to the person they knew as a man now being a woman and eventually might not object to her using the female cloakroom.


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Case study In Richards v Dept of Work and Pensions. a woman, who had been born male but had changed her gender, claimed her state pension should be paid from age 60 not 65. She fought the case to the European Court of Justice which held that the DWP’s refusal to pay her pension from the normal age at which a female’s pension would be paid was illegal under EU equality laws. The effect of the ruling is that all females (formerly male) are entitled to State Pensions from age 60. (One is tempted to wonder whether, as a result of this ruling, if the State can reclaim any state pension paid from 60 to females who have now become males.)

Unforeseen effects Since it is illegal to discriminate against anyone on grounds of their sexual orientation this could have an unintended reverse effect as well as the obvious effect of protecting the privacy of those whose orientation is not heterosexual. Thus, bars and other organisations set up for the benefit of gay patrons could breach the law if they bar entry to heterosexuals – a ruling which could even mean that a bar for lesbians might not be able to bar entry to a heterosexual male. The only legal method by which those who did not fit the ‘required entry parameters’ could be barred is if it is suspected that they could cause trouble.

Note: As this report was being finalised, the Equal Opportunities Commission was consulting of the terms of a code of practice aiming to give guidance to public authorities who must, no later than 6th April 2007, have gender equality schemes in place. This requires them to ensure that: •

both sexes are represented at all levels of the workforce and in all areas of work

•

sexual harassment of employees is dealt with promptly and systematically in accordance with an agreed procedure and

•

there is no discrimination against pregnant women or women returning to work after maternity leave.


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These schemes must be published, monitored and reviewed every three years. Public employers should also develop and publish an equal pay policy setting out measures to address promotion, development and occupational segregation and conduct and publish gender impact assessments of all legislation and major policy developments.

The ‘but for’ test ‘But for this person being female, male, pregnant, a new mother, or homosexual, lesbian or heterosexual, (etc) would we be treating them in this way, applying this requirement not applicable to others?’


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Chapter 3 Race and religious discrimination A. Race discrimination – introduction...............................................43 Who is covered? ..................................................................................44 Avoiding harassment penalties..........................................................49 Duty to job applicants .........................................................................49 Promotion .............................................................................................52 Provocation ..........................................................................................52 Positive discrimination........................................................................54 B. Religion or religious belief discrimination – introduction ........54 Scope.....................................................................................................55 The ‘but for’ test...................................................................................56

Chapter 3 Race and religious discrimination

A. Race discrimination – introduction Race and sex are the oldest UK anti-discrimination laws. Despite racial discrimination legislation’s 30 year existence there are still several thousand racial discrimination claims lodged with the Employment Tribunal service each year. Like other forms of anti-discrimination legislation, the challenge for employers is that of changing attitudes – some of which are ingrained. Whilst this may be understandable – although unacceptable – when perpetrated by lower level employees, it is to be deplored that in many cases racial discrimination is actually practised by those at senior levels in organisations. Greater attention has been focussed on the need for employers to be proactive by the Commission for Racial Equality launching in April 2006 its new ‘Code of practice on racial equality in employment’. The code specifically recommends that employers implement an ‘equal opportunities action plan’ to ensure that their policy on the subject is effectively communicated and put into practice. An employer will find it easier to defend tribunal claims if it can show that its employees received training regarding: •

the law against discrimination and harassment

•

the organisation’s own policy and procedure

•

what is acceptable (and unacceptable) behaviour in the workplace

•

employees’ own responsibilities under the policy to maintain and promote a working environment free of racial discrimination and harassment, and

•

the manner in which prejudice can adversely affect the way an organisation operates and the way bias in day-to-day operations can affect people’s chances of obtaining work, promotion and respect.

The code also recommends that employers should consider setting racial equality targets as a way of reducing disparities between racial groups stressing that targets are not quotas.


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Who is covered? The problem with words like ‘race’ is that they do not have a strict definition. For example, although Jews are regarded as a ‘race’ and thus discrimination against them under this legislation is illegal, Muslims are not and thus are not protected under this law (although they are now protected under the Religious or religious belief discrimination). Rastafarians are not covered by the race legislation since they are not regarded as an ‘ethnic group’, but Sikhs, as a result of the House of Lords decision in Mandla & anor v Lee, are protected as a race. Both are, however, protected under the religious discrimination legislation. Note: By virtue of one of the tenets of their religion/race, Sikhs, who must always wear a turban, are the only group of people who are exempted from the obligation to wear a crash helmet when riding a motorbike. Sikhs are also required to grow beards by their religion. In both Singh v Rowntree Mackintosh and Panesar v Nestle Co Ltd, Sikhs were refused jobs in confectionery factories because they would not shave off their beards. Both claims of racial discrimination failed – the hygiene requirements in a food factory were held to be acceptable reasons for their applications being rejected.

Definition and effect A person, including a legal person (e.g. a company) as well as unincorporated body (e.g. a social club committee etc), can discriminate: a)

Directly by treating someone on racial grounds, or by reason of their race (or colour), less favourably than another. Questions to be applied: a) has the claimant been treated less favourably than a comparator and b) was that treatment due to his or her race? If the discrimination results in dismissal or has direct consequences in terms of (for example) non-access to training or enjoyment of benefits available to others, it is obvious that there is a claimable loss – which of course can include an award for ‘hurt feelings’. Otherwise the claimant will need to show that there is a ‘detriment’. The word detriment has been defined in court as ‘putting [a person] under a disadvantage’ or a situation whereby ‘a reasonable worker would or might take the view that he or she had been disadvantaged in the circumstances in which he or she had thereafter to work’.

b)

Indirectly by applying a provision, criterion or practice which puts a person of a race or ethnic or national origin at a disadvantage when compared to persons not of that race etc.


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c)

Victimising a person; that is treating them less favourably because they are taking or proposing to take action or bringing proceedings under the Race Relations Act

d)

Harassing a person on grounds of their race, ethnic or national origins with the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.

Harassment has been defined by the Commission for Racial Equality as ‘racist ‘jokes’, banter, insults, taunts, gibes, literature and graffiti; shunning people because of their race, colour, nationality or ethnic background; excluding them from conversations, making racist insinuations, being condescending or deprecating about the way they dress or speak; picking on them unnecessarily and so on.’

Case study In an out of court settlement Sarah Locker and Metropolitan Police (her employer) agreed a settlement of £32,000 after she successfully complained of harassment, racial discrimination and being passed over for promotion,

In this and others similar cases, the compensation was paid by the employer as they were held liable for the acts of their employees. To escape liability employers must ensure that employees abide by the rules and, assuming detailed rules exist, ensure they are well policed and administered, and that sanctions are applied to those who transgress. If harassment then occurs, the responsibility and liability may be passed to individual employees.

Case study In Yeboah v London Borough of Hackney, although the employer had to make a considerable payment (£380,000) to their former employee who had suffered racial discrimination, Crofton, the director who was personally responsible for the acts of discrimination, was personally ordered to pay Yeboah £45,000 plus £14,000 interest (the figure being adjusted on appeal to £32,000 plus £23,000).


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The amounts awarded can reflect the seniority of the perpetrator, the degree of intent and whether it was a one-off instance or a series of deliberate acts. Unfortunately, unacceptable treatment on grounds of race is practised at the most senior levels and in organisations where most onlookers would expect greater appreciation of diversity of origins and respect for others.

Case studies Laurent Weinberger worked in the City of London for finance house, Tullett & Tokyo. Since he was often late for work, his colleagues and so-called friends made him dress up as Adolf Hitler. Not only is Laurent Weinberger Jewish, but also his grandmother died in Auschwitz as a result of Hitler’s persecution of his race. He brought a case of racial discrimination against his employers (holding them responsible for what went on in the workplace). The case was settled out of court for £500,000. In Jones v Tower Boot, a young mixed race man was recruited – the first time the employer had employed a person who was not white. In the six weeks he was there, his colleagues whipped his legs with electric cable, branded him with a hot screwdriver and put his arm in a vice which was tightened until it drew blood. In the subsequent case, his employer attempted to use the defence that ‘I do not employ these people to do these things and thus you cannot hold me responsible’. The Court of Appeal rejected this argument and stated that the employer was responsible for what went on in the workplace.

The difference between the Tower Boot and Al-Azzawi (see below) cases are that in the latter the employer was able to show that they attempted to train all employees to have respect for others regardless of race, sex, disability etc. This provides a guide to what is needed by employers. They should: 1.

Adopt anti-discrimination or pro-diversity/dignity rules and procedures together with details of how a complaint of failure to comply should be processed.

2.

Stress in contract documentation (in the contract or an employee handbook) that breach of such rules is not only unacceptable but is also gross misconduct carrying severe penalties.


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(Note: Discrimination is not only a disciplinary matter – it may also be a criminal offence punishable by up to 5 years in jail under the Protection from Harassment Act.) 3.

Bring all rules and procedures to the personal attention of all existing employees and new employees (possibly during induction or familiarisation processes) and encourage them to use the complaint procedure to report any breaches.

4.

Immediately it is known there is a complaint of an alleged breach, investigate the matter impartially and thoroughly; and, if the claim is well-founded, make the perpetrator subject to the disciplinary process.

Thus, in Yeboah, had Hackney been able to show (for instance) that they had: a)

trained everyone to have respect and dignity for every one with whom they came into contact

b)

carried out a very thorough investigation immediately Mr Yeboah raised his grievance and

c)

disciplined Crofton

they might have escaped liability.

Case study In Haringey Council v Al-Azzawi, Al-Azzawi claimed racial discrimination against his employer because a colleague referred to ‘bloody Arabs’. The employer disciplined the person responsible and made him apologise. Although a tribunal accepted the applicant’s claim of racial discrimination and found in his favour, the Employment Appeal Tribunal overturned this because the employer had a racial awareness policy, trained employees on it and disciplined offenders. Thus, the employer was held to have taken all reasonable practical steps to prevent discrimination occurring.

Note: In all matters of discrimination the general rule is that it is the perception of the victim rather than the intent of the perpetrator that is important. Many perpetrators have sought to evade liability by protesting ‘it was only a joke’. Whatever was intended, if the victim felt that it was serious, the onus will be on the perpetrator to defend the comment etc. and it may be difficult to evade liability.


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However, not all ‘racist’ comments will result in a successful claim for the ‘injured party’ – racial abuse (whilst unacceptable of itself) may not create racial discrimination. Many might find it unacceptable that the Al-Azzawi case (based on a single throwaway remark no matter how unpleasant) had to go to appeal to gain a sensible decision. This is not meant to excuse such comments but a plea for realism. There is no doubt that in a small minority of cases some claimants ‘play the race card’.

Case studies In De Souza v Automobile Association, Ms De Souza overhead a conversation between two managers during which she was referred to as the ‘wog’. This case went to the Court of Appeal which held that although such racial abuse can amount to racial discrimination, the detriment suffered does not lie in the abuse but in the effects of that abuse; in effect that the offensive acts or abuse must be such that a reasonable employee would have felt disadvantaged in those circumstances. Because here the remark had been overheard accidentally, the Court held that she had not personally suffered any disadvantage. Conversely in Ratanshi v British Rail Engineering Ltd, Ratanshi was called ‘a black bastard’ to his face by his supervisor. The fact that the remark was made by his supervisor and was said directly to him was held by the tribunal to be particularly harmful. (Of course, if the phrase had not included the word ‘black’ there would have been no case, unless no other employee would have been spoken to in that way by the employer.)

It must be said that the tribunal system is something of a lottery and prudent employers should not rely on a decision such as that in De Souza, but should follow the course laid down by Haringey in the Al-Azzawi case.


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Avoiding harassment penalties To avoid the penalties arising as a result of harassment (including racist abuse and language) in the workplace – as well as the harassment itself of course – employers need to be proactive. The following checklist might be advisable. 1.

Inform all employees what constitutes harassment and that it is not only a disciplinary but also a criminal offence

2.

Ensure all managers know it is their responsibility to ensure compliance and to prevent or immediately stop any instance of harassment – and to show a good example themselves

3.

Provide a general complaints process (the Grievance procedure could be used)

4.

Provide a confidential complaints process where the complaint is against the immediate superior of the complainant

5.

Ensure all complaints are logged and immediately investigated by someone not involved

6.

Where the complaint is well-founded, institute disciplinary proceedings against the person responsible for the harassment

7.

Provide counselling.

Duty to job applicants In each case above, the claimants were employees. However, employers owe duties under the discrimination laws not only to their employees but also to those applying for jobs. This can pose a more difficult challenge since many rejected candidates will seek to find reasons other than their own lack of experience or suitability for the vacancy to explain their lack of success. It is prudent, therefore, when recruiting to adopt a procedure which attempts to protect against claims of discrimination.

Recruitment checklist 1.

All recruitment is to be subject to the initial completion of an application form which must be signed by all applicants, thereby confirming the accuracy of the contents.


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2.

Details of all those requesting an application form will be noted.

3.

Brief details of every application will be recorded in the applications register for each vacancy. Receipt of any application forms after a preadvised deadline will be noted.

4.

The only criteria for selection for interview are skill, experience and capability to undertake and perform the tasks comprising the job. The data of those that do not seem to meet the specified criteria should be marked ‘X’ and not proceeded with.

5.

The reason(s) for selecting each applicant for interview should be placed against each name.

6.

During the interview process only the requirement criteria (set out above) should be applied and details of the reasons for selecting candidates for short listing should be determined and noted. This process should be repeated for subsequent and final interviews.

7.

The Personnel Director should periodically spot check the applications register and the details of those not selected for interview – and the means by which short listed candidates were eliminated to leave the successful candidate – to ensure there was no bias or discrimination (and effect rectification if there was).

8.

In the event of a claim for discrimination the data and statistics provided by the applications and interviewing register are available to rebut unwarranted inferences or claims of discrimination.

Some employees seek to monitor applications and appointments by requiring all applicants to provide details of their ethnic origins. Part of the application form could include a request for information of this type.


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Ethnic origin This organisation requires there to be respect for all, irrespective of race, sex, disability, sexual orientation, age and/or religion. To ensure adherence to these principles we need to be aware of the race or ethnic origin of all employees, and we would ask you to tick the box below which most closely describes your ethnic origin.

African Arabic Asian Caribbean Latin Oriental UK European Other European Other (please specify)………. Employers who fail to ensure that their recruitment practices are fair and not subject to bias or discrimination may find that they are held liable for compensation.

Case study Tahir Hussain applied to over 14 prospective employers over a period of several years both in his own name and in that of a fictitious white female. Whilst the applications in his own name were invariably unsuccessful, his ‘female white alter ego’ was often called for interview. He made several applications to Employment Tribunals and won around nine cases of racial discrimination and settled three or four more out of court. One losing employer complained bitterly that Hussain was a serial litigant but received no sympathy from the Tribunal chairman who maintained that employers who broke the law must expect retribution. In Khan v Research Services Ltd, Mr Khan made an application which was much later than all others received and as a result missed being shortlisted. He also applied again but this time in a fictitious white male’s name and was called for interview. He attempted to claim that his first application had been ignored on racial grounds but lost when it was pointed out that there were two vacancies – he had been too late for the first (following which all applications had been discarded) but his ‘alter ego’s’ application was in time for the second. (This may suggest that adverts should specify a closing date for applications which many private employers may feel is unnecessary, but underpins the need to keep track of all applications and the basis on which their subjects are – or are not – called to interview.)


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Promotion Inevitably, when considering a number of competing applicants for promotion it is possible for disappointed applicants to suspect that the reason for them not being selected is connected to, or because of, their race, colour or religion. Details of all applicants for promotion should be set out on paper (rather like the Applicants register referred to above) with the criteria needed to be met. However, an employer may need to consider whether minorities might be put at a disadvantage simply by applying certain criteria.

Case studies In Pratt v Walsall Health Authority, a black charge nurse won his case of both direct and indirect racial discrimination when he was rejected without interview for the post of Senior Nurse Manager. He was indirectly discriminated against since one of the criteria for the successful applicant was that they could show previous rapid and vigorous promotion through the ranks. This was held to be discriminatory since it was more difficult for black nurses to make swift progress than their white colleagues simply because of inherent discrimination. In Dinar v Burger King Ltd, Dinar was allocated far more menial tasks than those given to white employees and thus his experience was limited. The allocation of such tasks was the responsibility of the manager (as was consideration for promotion). Dinar complained that he could not qualify for promotion because so much of his time was absorbed by undertaking the menial tasks which he was given because of his race. The EAT found that he had been subjected to less favourable treatment on grounds of race.

Provocation Most reasonable people would feel that where a person responds to bullying or discrimination, that should not prejudice their case. However, an employer can stipulate that provocation is not to be taken into account – the emphasis being that if a person is subjected to unacceptable behaviour their correct response is to report it to someone who can take appropriate action.


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Case study In Sidhu v Aerospace Composite Technology Ltd , Sidhu was involved in a fight when he responded to considerable racial provocation. He was dismissed (as were the employees who subjected him to the provocation) and claimed racial discrimination. He lost the case however since the employer’s rules stated that provocation was not to be taken into account and any other person in the same position would have been dismissed as a result of the rule.

Aggravating the situation In the suggested procedure above it is recommended that as soon as there is a complaint of racial harassment, bullying or discrimination, an employer must investigate thoroughly and without delay. Failure to do so can be deemed to be a further act of discrimination by the employer (rather than by the employee perpetrator). Refusing to accept that there was any act of discrimination or to investigate when there is a complaint may not only be deemed to be discrimination itself but, in addition, can lead to the award of aggravated damages by a tribunal.

Case studies In Bhalla v M Firkin, despite Bhalla protesting to the management that he was being harassed, nothing was done. At the hearing the employer offered no apology and simply asserted that the whole matter was a figment of his imagination. The employee was awarded £12,500 compensation including £2,500 aggravated damages. In Richardson v Evans & Chief Constable of West Midlands Police, a black female police officer was subjected to racial abuse. The subsequent investigation was held to have aggravated the abuse and compensation of £15,000, including £2,500 aggravated damages, was awarded. In Nazir v Yorkshire Envelope Co, four Asian employees suffered racist working practices and, even though they had been told they could have time off to celebrate the Muslim festival, Eid, this permission was then withdrawn. At the hearing, the employer maintained it had done nothing wrong. The employees were awarded £47,800 including aggravated damages.


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Positive discrimination Although in the USA employers are required to employ quotas of minority races, such positive discrimination is not required in the UK, although some employers have, since they feel minorities are under represented in their workforce, attempted to encourage applications from minorities and/or to ‘over recruit’ such applicants.

Case study Avon and Somerset police force had 180 vacancies but felt that the force was underrepresented by women and ethnic minorities. Accordingly, when it received 850 applications for the vacancies it rejected 186 from white men giving precedence to applications from women and ethnic minorities. This was both sexual and racial discrimination, albeit perhaps for laudable reasons. One white male claimant has settled his claim for sexual discrimination out of court. The police force admitted what it had done in agreeing the claim (thereby potentially opening itself to claims from the other unsuccessful applicants – although many may be out of time in submitting a claim) but Avon’s Chief Constable called for a change in the law to allow positive discrimination in such circumstances.

Note: Under the Race Relations Act 2002, public bodies (especially schools and universities) are required to promote racial equality. In addition Public employers must adhere to the Commission for Racial Equality’s new code of practice on racial quality (see above).

B. Religion or religious belief discrimination – introduction Although it had been unlawful to discriminate on grounds of Religion in Northern Ireland for several years, it was not until 2004 that a similar law was enacted covering England, Scotland and Wales. ‘Religion or religious belief’ is a simple phrase which conceals a complicated area of potential discrimination, since the word ‘religion’ is largely undefined. The ACAS code lists the major religions but warns that the list is not comprehensive. Under the ‘religious belief’ phrase, atheists (who maintain there is no God) are protected, as are Satanists. Adherents to older religions – for example Druidism – are also protected. During the


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last UK census when, for the first time, everyone was asked (but not compelled) to enter their religion, over 400,000 entered ‘Jedi Knight’ (from the film epic ‘Star Wars’). Whilst a ‘Jedi Knight’ may find it difficult to substantiate their claim that this is a religious belief, the numbers claiming adherence exceed the total adherents to some fringe religions. So far there have been relatively few cases, and all have been from what would be considered ‘main’ or mainstream religions.

Case studies In Williams-Drabble v Pathway Care Solutions, Ms Williams-Drabble is a practising Christian who, because she had told her employer that she wished to attend Sunday morning worship, had previously had her hours altered to accommodate this. Following a change of rota she found she was down to work Sunday mornings and protested to no avail to this permanent change of her hours. This was found to be indirect religious discrimination. In Khan v G & J Spencer Group plc (t/a NIC Hygiene) Ltd, Khan is a Muslim who had asked his employer to use the whole of his 25 day’s annual leave for a pilgrimage to Mecca. The employer did not respond and Khan’s manager told him he should assume he could go. On his return he was found to have taken unauthorized leave and was dismissed. This was found to be unlawful discrimination.

Scope Employers (and those they employ or direct) must not: •

treat workers differently on grounds of their religious belief unless there is a genuine occupational requirement (GOR). Accordingly it would be permissible for a denominational school to insist that only those following a particular religion should be employed as teachers or administrative staff. However, it might be unlikely that this restriction could be legally applied when the same school recruited maintenance staff.

•

discriminate or subject workers to harassment (in which regard employers are responsible for the acts of their employees, as they are for other discriminatory practices) because they (or someone connected with them – e.g. a son or daughter) follow or subscribe to a particular religion.


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•

discriminate against a person or harass them after their employment has ended on such grounds (e.g. not providing a reference because a person is, for example, a Jew).

•

apply unnecessary rules regarding dress codes which could discriminate against followers of a certain religion. There is currently only one legal exception to dress codes – Sikhs are not required to wear crash helmets when riding a motor bike, since their religion requires them to wear a turban at all times. However, there have been court decisions stating that (for example) a Muslim adherent should be able to wear the restrictive clothing claimed to be a requirement of the religion (despite the fact that many Muslims believe there is no such religious requirement).

•

ensure that where there are genuine job requirements, these are made clear to all applicants. For example, a need to work late regularly on a Friday could conflict with the religious requirements of those of the Muslim and Jewish faiths and could be a legitimate reason for refusing to employ such applicants. Employers need to respect the requirements of those of certain faiths, e.g. providing separate changing facilities (if changing and showering facilities are provided) for those whose religion forbids changing in the presence of others; providing meditation rooms for those whose religion requires regular prayer during the working day; ensuring canteen facilities provide a choice of food so that religious dietary requirements can be satisfied (or making facilities available so that particular foods can be prepared). Since employers are responsible for the acts of their employees, these requirements should be brought to the attention of every person (employee and worker) in the business and it be made clear to everyone that failure to respect a person’s religion or belief is both a breach of the rules of the business (and thus subject to sanction) and a breach of legislation. With this kind of action (and the ability to show that everyone was told and thus knew their obligations) subsequent claims may be avoided by the employer – although the individuals themselves might be made personally liable.

The ‘but for’ test ‘But for this person being black, white, Chinese (etc) or Jewish, Christian, Muslim (etc) would we be treating them this way, or applying this restriction which is not being applied to others?’


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Chapter 4 Disability Discrimination Introduction..........................................................................................58 Legislation – old and new ...................................................................58 Fundamental principle ........................................................................59 Application of the legislation .............................................................60 Recruitment ..........................................................................................65 A wider duty?.......................................................................................66 The Disability Discrimination Act 2005.............................................67 The ‘but for’ test...................................................................................67

Chapter 4 Disability Discrimination

Introduction The Disability Discrimination Act 1995 (DDA) (as amended) does not, contrary to a common misunderstanding, require employers to employ, or to continue to employ, those who have a disability or become disabled. However, unlike other anti-discrimination laws, it does allow employers to positively discriminate in favour of a disabled person (against an able-bodied applicant or employee) and also, of course, adds the dimension of requiring employers to consider the effect of an assessment of a medical condition (physical and mental). The main thrust of this law is to require employers to consider making reasonable adjustments to working arrangements to allow those (either existing employees or otherwise successful applicants) who have a long term disability to work productively rather than drawing benefit from the State.

Legislation – old and new Previously, the Disabled Persons (Employment) Act 1944 had applied a quota system to employers. That Act (which the DDA repealed) required employers with 20 or more employees to employ disabled persons to a quota of 3% of their workforce. In addition, two occupations – lift and car park attendant jobs – were reserved for disabled persons, the logic presumably being that both of those jobs could be performed from a sitting and static position. Such legislation was largely unknown, ineffective and usually ignored – in 30 years there were only three prosecutions for failure to comply. Whilst, initially, employers with fewer than 15 employees were exempt from the Act’s obligations, this ‘minimum number of employees’ threshold was abolished in October 2004. From the same date, organisations dealing with the public (shops, churches, restaurants, libraries, public offices etc.) were also required to comply.


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Fundamental principle The underlying fundamental principle of the DDA is that it is unlawful to treat a person with a disability less favourably than a person who does not have a disability. The treatment has to be related to the disability or its effects. However, if the employer can show that the treatment was justified and that it had made ‘reasonable adjustments’ to the environment and/or premises, or it was not possible to do so, that will negate the obligations. The protection is not only for employees but also covers applicants for jobs, contract workers, temporary staff, agency supplied staff, self-employed people and apprentices. In addition, anyone speaking out on behalf of a disabled person who themselves are treated less favourably because of their ‘protest’ are also protected. The DDA bears comparison with the earlier anti-discrimination legislation on Sex and Race but has a fundamental distinction in that if may not be the disability itself which causes the employer a problem so much as the result or effect of that disability; e.g. it becomes more difficult for the employer to use or continue to use the person because of their disability. But the fact that there are such difficulties is not of itself a defence for failing to be proactive (even creative) in trying to assist the disabled person to overcome such difficulties. It could be said that the challenge reflects the growing expectation of employers that as well as running their businesses they should also be ‘socially responsible’. In addition, whilst sex and race discrimination apply to all applicants and employees, the DDA applies only to those who can show that, for the purposes of the Act, they are disabled (as defined). Knowing of the disability and then not acting is obviously likely to bring about a successful claim.

Case study In Williams v J Walter Thompson Group Ltd, the employer recruited a blind employee but then failed to investigate the resources and support etc. that she would need, as well as the expenditure that would be incurred in providing her with the ‘reasonable adjustments’ necessary to enable her to work. The Court of Appeal found that the employer had recruited her with the full knowledge of her blindness and that she would only be able to perform her duties if they sourced a particular software package which they failed to do.


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Application of the legislation Section 4 of the DDA sets out the various circumstances which would create an offence under the Act. It is illegal to discriminate against a disabled person who is applying for a job •

in the arrangements to consider to whom he should offer employment, or

•

in the terms included in the offer for employment, or

•

by refusing the application of a disabled person on grounds of their disability or the effects of it.

In addition, as far as existing employees are concerned it is illegal to discriminate against a person who becomes disabled •

in the terms of employment offered that person, or

•

in the opportunities for promotion, training or the receipt of any other benefit, or

•

by refusing a disabled employee the chance to use such opportunities, or

•

by applying some detriment including dismissal to that person.

For the purposes of the Act a person is ‘disabled’ if they •

have a physical or mental impairment, the effect of which means that they have an ‘incapacity’ to carry out the every day acts of life unaided. Thus, the inability without assistance to rise, wash, dress oneself and/or to shop, cook and clean for oneself would all bring a person under the Act’s protection.

•

the effects of the impairment are substantial,

•

the impairment is long term (defined as being likely to last at least 12 months).

The Act applies to all employers and protects existing (and future) disabled employees and (to a limited extent) applicants for jobs. Its coverage not only protects disabled people but also anyone speaking out on their behalf. It allows justification (which must be material and substantial) as a defence and applies in respect of recruitment, job offer, refusal to appoint, terms and conditions, promotion prospects and dismissal. To assist such persons being able to work


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or continue to work, employers are required to make reasonable adjustments to the working environment (if possible), which could include the following: •

alterations to premises

•

alterations to working hours, site, duties and equipment (possibly including re-allocating some of the disabled person’s duties to others)

•

transferring the disabled person to different duties or a different location, or on different hours

•

alterations to manuals, procedures etc (e.g. providing written instructions in Braille)

•

allowing paid absence during working hours for training, assessment and rehabilitation (this could, for example, enable a blind person to learn Braille)

•

providing assistance (e.g. a reader, writer or interpreter) and supervision.

•

acquiring or modifying equipment

Case study In Tarling v Wisdom Toothbrushes Ltd, (one of the first disability discrimination cases) Mrs Tarling had been employed by Wisdom for over 17 years. She had a club foot and the pain began to impact on her ability to carry out her work. Wisdom made enquiries and found that a special chair – costing around £1000 – could assist. Although the chair could have been used on a free trial basis and if wanted permanently, with grants, could have been purchased for £200, this was not done. As Mrs Tarling’s performance deteriorated, the company instituted disciplinary proceedings and ultimately dismissed her. Her discrimination claim was successful and the tribunal ordered that she be reinstated.

‘Reasonableness’, in terms of making adjustments, depends upon individual cases. An assessment of whether an adjustment is reasonable could (and should) take into account: •

the availability of finance and resources to make adjustments

•

the practicality of making the adjustment

•

the cost and disruption to the employer’s business

Note: A larger employer might be expected to make more adjustments than a smaller employer. However, the Access to Work initiative can provide up to 80% of employers’ costs of making adjustments to enable the disabled to work (or


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100% to allow a disabled employee to continue to work). In addition, advice on disabilities and adjustments can be obtained from Disability Service Teams. Details on both initiatives are available via Job Centres.

Examples 1.

An employee (E) works for an employer (R) on the third floor of an office block. There is no lift and other organisations (not connected with R) occupy the Ground, 1st and 2nd floor. E breaks his hip playing rugby. Is he disabled? Yes, but not disabled for the purposes of the DDA since that incapacity to carry out the everyday acts of life will probably not last 12 months. However, if it is a more serious injury which means that he now has to use a wheelchair permanently, he would be covered under the Act. R must now assess what reasonable adjustments he could make. For example he could •

relocate E to the ground floor (which is unlikely given that other organisations occupy that area and in any event could prove dislocative in terms of work flow)

•

install a lift. Not only is this expensive (although R should check with the Access to Work initiative to see if any grants are available) but also it requires agreement from the other occupiers to give up some of their space for the lift shaft. On both cost and practicality bases this option might be ruled out.

•

install a chair lift which goes round the walls of the staircase. This is very unlikely to be feasible since it needs to reach the 3rd floor.

•

arrange for E to work at home,

and so on. 2.

An employee develops epilepsy which can be controlled by medicine. However, he also drives a fork lift truck. The employer may be concerned that he should stop the employee driving the truck for safety reasons. This is a decision which might be better advised upon either by the employee’s own medical practitioner or by reference to a Disability Service Team. Once again an assessment should be made with the benefit of such advice. If the advice is that the employee should no longer drive a fork lift truck, the employer’s obligation is to consider whether there are any other jobs the employee could perform. There may be (for example) an assembly job but the wages are lower than


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that paid to a fork lift truck driver. There is no requirement for the employer to pay ‘over the odds’ if the employee moves to that job. (In Smith v Carpets International UK plc, the employee suffered from epilepsy but had several seizures at work and his doctor concluded that he should not continue to work in the warehouse as there were fork lift trucks and machinery operating. His employer transferred him to the samples department on a lower salary. A tribunal stated that the transfer was justifiable on safety grounds and it was not reasonable for the employer (economically) to pay the same rate as previously.) 3.

An employee has dyslexia. The employer will be expected to provide training and support to try to assist the employee in performing their duties notwithstanding the effect of this disability (a condition which would usually be accepted as qualifying under DDA since it tends nowadays to be identified in childhood – and is normally permanent). Assuming that such training and support is provided, should the employee not then be able to perform the required tasks and there be no other suitable alternative jobs available, it may be fair to dismiss the employee (see Henderson v Scottish Widows Fund and Life Assurance Society).

4.

An employee is diagnosed by their doctor as suffering from stress. Under the original Act, the employee might have been unable to press a claim since stress was regarded as not of itself constituting a disability. However, under the 2005 changes to the DDA (see below) the condition causing the employee to claim under the Act no longer needs to be ‘clinically recognised’, which may mean that a greater number of claims prompted by ‘stress’ will be generated.

5.

An employee had undergone open heart surgery some time in the past but was now working for an employer carrying out tasks including lifting heavy objects. He refused to lift the objects since medical advice warned him against so doing. The employer required him to carry out the lifting and when he refused dismissed him. In Quinlan v B & Q plc the employer was found not to have breached the DDA. The test to be applied is can this employee ‘carry out the normal everyday acts of life’ not can they ‘carry out the lifting requirements of the job’. Since Quinlan could lift things in normal life he could not claim the protection of the Act.

6.

In Buck v Bernard Mathews Foods Ltd, Buck was a diabetic who relied on insulin to control his diabetes. Because, unbeknown to his employer, he had not taken medication to control his condition, he lost


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his temper at work, became angry, violent and abusive and walked out. He was dismissed – a dismissal which was found to be related to his disability. However, the dismissal was found to be justified because his employer had made all reasonable adjustments and, in any case, the fact that his diabetes was out of control was self-inflicted as he had not taken his medication.

The lack of knowledge test (either in recruitment or as in the Buck case above) may be critical.

Case study In Department of Work and Pensions v Hall, it was demonstrated that the employer knew of their employee’s disability since her manager and their human resources manager knew she had applied to the Inland Revenue for a disabled person’s tax credit. This was deemed to be constructive knowledge of her disability and thus the employer had discriminated on the grounds of disability.

To be able to resist later claims of discrimination it would be advisable to prepare written and contemporaneous assessments recording areas investigated with the aim of making it possible for a disabled applicant to work, or an employee becoming disabled to be retained. Sickness as ‘fair dismissal’ Those who qualify as ‘disabled’ for the purpose of the DDA are protected from sanction in respect of sickness – but only that sickness which is related to their ‘qualifying’ disability. If an employer has a rule that anyone exceeding a stated number of days absence in a year (or, more prudently, a ‘rolling 12 month period’), disabled employees will be subject to the rule in respect of illnesses or absences other than that providing them with protection under the Act.

Case study In Cox v The Post Office, Mr Cox suffered from asthma (a condition that qualifies under the DDA). He was off sick on a number of occasions, some related to his asthmatic condition, but others for unrelated causes. The employer gave


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him a number of warnings about his absences. He collapsed at work and was away for 18 days. He requested a consultant’s report, but without waiting to see this, his employer dismissed him. This was held to be a discriminatory act, since what should have been assessed were only the absences that were not linked to or caused by his asthma. Had such ‘protected’ absences been excluded, his poor absence record would (under the employer’s rules) only have warranted a verbal warning.

Recruitment Applicants can claim discrimination against prospective employers but obviously an employer should have a good defence if they can show that they did not know of the applicant’s disability.

Case study In Rideout v TC Group, an applicant suffered from photo-sensitive epilepsy and stated this in her application. When she arrived for interview she commented on the bare fluorescent lighting in the room. As she had dark glasses round her neck the interviewers presumed that if the flickering of the fluorescent lighting caused her a problem she would use the glasses. When she was not appointed she claimed disability discrimination. Both a tribunal and the EAT decided that this was not so and that the employers had no obligation to make reasonable adjustments when they conducted the interview. (Had she stated that she could not be interviewed under bare fluorescent lighting, and they had then declined to interview her, that could have been discrimination on grounds of her disability.)

One suggestion to avoid possible claims is to alter recruitment material so that disabled applicants need to contact the prospective employer and declare their disability. Thus, a letter inviting an applicant to interview might request them to telephone should they require assistance in reaching (for example) the second floor office of the employer in a building where there is no lift. The request for information regarding a disability should be kept as open-ended as possible, so that it covers as many conditions as possible. Knowing of a condition, however, involves an employer then being proactive to discover what action he should take.


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A wider duty? Relatively few of the claims brought under the Act have been successful, often because those claiming its protection have not understood the detailed but limited obligations placed on employers. Further, some respondents have been able to show they did not know of the disability. No duty to a disabled applicant arises if the employer does not know – and could not reasonably be expected to know – that the applicant is a disabled person and is thus likely to be protected by the Act. However, where an employer does know of the disability of an existing employee, they are under an obligation to try to deal with the challenge positively and without placing obstacles in the way, even if this means giving the disabled employee preferential treatment against able-bodied colleagues.

Case study In Archibald v Fife Council, Mrs Archibald worked as a road sweeper, but following surgery became unable to walk and thus could not continue her job. Although the Council retrained her for office work, when she applied for over 100 jobs in the Council she was unsuccessful, mainly since she had to undergo a competitive interview process in each case. She was dismissed for being incapable of carrying on her job as a road sweeper although there were jobs she could have done. The House of Lords held that in such circumstances the employer had a duty to take such steps as were necessary to redeploy her, which might even extend to transferring her to a higher grade post without requiring her to compete with other applicants.

Note: From October 2004 all businesses that interface with the public have been required to make reasonable adjustments to allow access to the disabled. Thus, all those who provide services or goods (churches, shops, food providers – restaurants etc., transport facilities) must alter their buildings where possible to ensure ease of access to the disabled. The requirement is conditional on the basis that alterations required are such that are ’reasonable in all circumstances of the case’. This could of course cover premises where applicants for jobs are interviewed since, until they are recruited, they are ‘members of the public’. In addition from December 2006 public authorities will have the duty to promote equality of opportunity for disabled people.


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The Disability Discrimination Act 2005 This amending legislation became effective on 1st December 2005. It •

removed the requirement that mental illness must be ‘clinically recognised’. (A substantial proportion of Disability Discrimination claims concern mental illness and this relaxation could well increase the overall number and that proportion.)

•

requires employers to treat those suffering from cancer, HIV infection and multiple sclerosis as ‘disabled’ for the purposes of the Act. Other similar degenerative conditions continue to be considered under the ‘progressive conditions’ criteria.

Note: The Disability Rights Commission’s (DRC) has issued revised guidance about the definition of disability reflecting the changes made by this Act and in addition has revised its Code of Practice. The new Code came into effect on 1st May 2006 covering claims arising out of acts of discrimination that took place on or after that date (see www.drc.gov.uk/thelaw/practiceasp).

The ‘but for’ test ‘But for this person being disabled would we be applying this restriction not applicable to others, or have we considered all possible reasonable adjustments to allow this person to carry out the work required to be done?’


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Chapter 5 Age Discrimination Introduction..........................................................................................69 Recruitment .........................................................................................69 Transitional arrangements..................................................................78 Forced retirement – procedure ..........................................................79 Optional retirement – procedure .......................................................80 Postscript .............................................................................................81 The ‘but for’ test...................................................................................81

Chapter 5 Age Discrimination

Introduction Unlike other anti-discrimination laws (which seek to protect minorities), the antiageism discrimination requirements (from 1st October 2006) have the potential to affect every employer and every employee. Whilst the new law’s requirements have mainly generated attention to the problems of enforcing compulsory retirement, the ramifications of anti-ageism affect every aspect of work – not least in recruitment and training, and career progression and promotion – as well as the ability of an organisation to find positions at a senior level held down for a longer period than hitherto by older employees who have carried on working past what has hitherto been considered their ‘normal’ retirement date. This could stultify fresh ideas. Obviously, such effects must be managed effectively, not only to avoid possible compensation payments but also – and more importantly – to maintain motivation and commitment from the whole workforce.

Recruitment Hitherto, new employees have been sought very much on an ageist basis. It has been very common to set age limits for certain jobs (e.g. ‘young’ actors to play Romeo and Juliet, an ‘older’ actor to play King Lear, which wording should still be acceptable). However, other than those, perhaps relatively rare, instances, (as well as jobs where there is a legally required age – 17 for a driving licence for example) any reference to age, or using words that give an impression of age, could be a breach of the legislation, which could result in the organisation paying substantial sums in compensation. Thus, copy for advertisements which includes phrases such as ‘young and dynamic’, ‘energetic’, ‘graduate’, ‘needs youthful outlook’, ‘wanted to join a young (or, perhaps less likely, ‘older’) team’, ‘vigorous/vibrant’, ‘young at heart’, ‘this is a young person’s game’, ‘needs flexibility’ (where that implies younger rather than older applicants) as well as ‘well-experienced’ and ‘mature’ may be best avoided. Advertisements with such phrases will not themselves breach the regulations but the effect – that


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is potentially excluding younger or older applicants – would probably be discriminatory. In addition, the fact that a job is perceived to be within a ‘youthful’ environment (e.g. it is in the IT business, or selling pop records, or is fashion orientated) should not itself be used to ‘justify’ trying to exclude ’older’ applicants. Phrases and descriptions that are ‘age-neutral’ should be used, or subjective descriptions should be avoided and descriptive narrative should concentrate on the essentials of the job and the challenge. Age-neutral phrases could include, for example, ‘able to deal with pressure’, ‘self-starter’, ‘educated to tertiary level’, ‘experience of [detail] for at least X years’ (provided that level of experience can be shown objectively to be required) and so on. If there is a legal requirement (e.g. minimum age to drive etc.) it is still permissible to apply this; and the staged age payments related to the National Minimum Wage are exempt – although an employer’s own age rates are not. Action required: Review wording of all job advertisements and instructions to agencies, headhunters etc. Remove any words that indicate age or could be perceived to be age-related. Take care with wording such as ‘needs 3-5 year’s experience’ – firstly, it is best for this to be able to be objectively justified; secondly, it could be held to be discriminatory to younger people who may not have had a chance to ‘earn’ that amount of experience, or even to older people who have more than that level of experience! Stipulating a level of fitness for a sedentary job could also be held to be discriminatory, since it is likely that older applicants would be dissuaded from applying.

Person descriptions (PDs) Very often PDs (which often form the basis for the advertisements referred to above) actually use or generate the language and phrases which are likely to breach the legislation. It has been extremely common for an ‘ideal age’ to be stipulated by those looking for new or replacement staff and this practice should be avoided. Action required: All wording should be reviewed ensuring that it is, unless the reverse can be objectively justified, in accordance with anti-ageist requirements.

Job descriptions (JDs) JDs should not – either directly or indirectly – be age specific (other than to reflect any legal requirements). These may be less likely to require alteration, however it would be as well to check that this is the case. Action required: Review and update all wording to ensure that it is age-neutral.


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Contract terms/Handbook content Almost unwittingly, terms can be used in both contracts and handbooks which are age discriminatory. Any benefit, or disbenefit, which is linked to the attainment or non-attainment of a particular age could be held to be discriminatory and should be revised to become age-neutral. However, benefits related to (for example) years of service may not offend this legislation unless they are manifestly unfair (since only those of a particular age could qualify). It is recommended that benefits for service longer than five years may require evidence that they are motivational if they are to escape a challenge on age-discriminatory grounds. Action required: Review all wording ensuring that it is, unless the reverse can be objectively justified, in accordance with the new requirements.

Appraisal When completing ‘appraisal’ or ‘performance review’ documentation, all managers and supervisors should be trained to ensure they avoid any reference to age or phrases that generate the concept of a required, preferred or ‘not preferred’ age. Thus, during the appraisal interview whilst it should be acceptable to state ‘I think you will need x months training before promotion’; stating instead ‘we won’t be able to promote you until you are 25’ would almost certainly be discriminatory. If Appraisal is linked to Training, no age limits should be applied to either aspect (unless legally stipulated or objectively justified). Action required: Train all involved in appraising employees of the need to avoid any reference to age and to use age-neutral wording. Review all forms used in the process to eradicate any suggestion that employees are assessed by virtue of their age or lack of it.

Management and promotion The test for promotion should be reduced to the simple assessment ‘is this person – with the skill and experience they have – appropriate to perform the collection of duties which together comprise this job?’ In this regard it might be acceptable to stipulate that, say, ‘three years experience’ was essential before a person could be considered, provided this length of work-based experience (entirely unrelated to any particular age) is an objective requirement. With the move to – or adoption by an employer of – a variable retirement age (see below), the challenge of succession planning becomes more acute. No assumptions should be made, either in discussion or, even more importantly, in written format, that anyone will retire on a set date.


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Action required: Train all involved in assessing employees with a view to promoting them to ensure ‘age’ or age-related considerations play no part in the assessment. Appoint a senior person to oversee all promotions and to check that, irrespective of age, all those who should have been considered have been considered.

Training Almost inevitably, when considering the need to train personnel, the question of how long a person is likely to remain with the organisation – and thus for how long they will benefit from the training (and thus the sponsoring organisation will obtain a return on its investment) – is likely to be raised. Older employees have widely and traditionally suffered from this attitude, not least since (it is assumed) ‘they will be retiring soon’, ‘their age is against them’ or even ‘they won’t be up to it’. Apart from the fact that these comments are, under the new rules, discriminatory, they are also likely to be untrue, since there should be no assumption of a set retirement age or that an older individual will not be able to cope as much as a younger colleague. The ‘retirement’ assumption will become increasingly unreliable as more and more people wish (and/or will be forced due to financial pressures) to work past what has been regarded as their ‘normal’ retirement date. Providing it applies to all personnel, there should be nothing to stop an employer – when selecting an employee for training – from asking them to sign an undertaking that they will repay a proportion of the costs (possibly decreasing in time) should they leave within a set time of having completed the training.

Draft Undertaking I, being an employee of [employer], hereby undertake that in consideration of the employer financing my training with [details] at a cost of [amount] that, should I leave the service of [the employer] within the times stated below, I will repay the proportion of the costs of such training also stated below. •

If I leave in less than six months I will repay 75% of the above figure

•

If I leave in more than six months but less than 12, I will repay 50% of the above figure

•

If I leave in more than 12 months but less than 24, I will repay 25% of the above figure.

I also hereby grant authority to [the employer] that in the event that I have not paid the amount due before leaving employment, [the employer] may deduct


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the amount due from any monies due to me in respect of wages, holiday pay, etc. on termination. I undertake to pay [the employer] any balance left outstanding after such deductions have been made, before such termination. Signed ________________________________________________________________________________________________

Until this is tested in a tribunal it may be unwise to rely on this with older personnel however. Action required: If there is a training plan, the wording of the plan and the procedure for implementation should be checked to ensure that there is (particularly) no ‘upper cut off’ for training. If there is no plan then, as training on an ad hoc basis is considered, every person, regardless of age, should be reviewed objectively. If the organisation decides not to have a set retirement age at all, discussion with older employees of their likely retirement date could help such planning.

Benefits Whilst additional benefits will usually be able to be given where these are related to ‘length of service’ (e.g. an extra day’s holiday for an extra year’s service), anything which relates the benefit to the age of the employee (e.g. insurance) must not be discontinued simply because of advancing age unless such a decision can be objectively justified. Material ‘additional costs’ might be considered an ‘objective justification’ but again it may be safer to await the results of a test case on this. Generally, where an employee wishes – and has been allowed – to work past a stipulated retirement age, employment benefits must be maintained since obviously removing or reducing such benefits would disadvantage an older person and could be discriminatory. Increasing benefits in respect of greater service than 5 years may be best evidenced that it/they improve motivation generally to avoid a change of these being in any way discriminatory. Action required: Revise any policy or procedure which cuts across these requirements. All documentation may need to be checked. It could be discriminatory to exclude (for example) an older person from life insurance cover simply because the premium for covering them is more expensive than covering a younger employee – although this might count as objective justification


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Bullying, victimisation and harassment Whilst employers should have become used to ensuring that such practices do not occur based on sex, race and disability, and more recently religion and religious belief and sexual orientation, they may perhaps have overlooked that such practices could be occurring on an age basis. For example, words and phrases such as ‘grey haired’, ‘wrinklies’, ‘long in the tooth’, ‘granddad’, ‘you coasting to pension, then?’, ‘you not pensioned off yet then?’ as well as ‘baby-faced’, ‘young ‘un’, ‘immature’, etc. are all arguably age discriminatory. Even sending an employee colleague a birthday card with some of the above comments might be held to be discriminatory. Whilst such comments can be used in a friendly, joking way (and genuinely intended as such), a similar description could have been said of similar types of phrases made that have generated (and continue to generate) successful racial and/or sexual discrimination claims. This poses a challenge for employers since they could be held liable for compensation for any successful claims. The challenge for employers is the need to educate their workforce that such comments, even if meant in a joking or humorous, way may be best left unsaid.

Case study At one of my seminars an employer (prior to the implementation of the Act) related that they had just recruited a 60 year old called ‘Roger’. One of the new employee’s prospective colleagues who wanted to know his start date, called out in the middle of a crowded office ‘When does Roger the Codger arrive on his zimmer frame?’ Such a comment, even said entirely in jest, could in other circumstances (i.e. if the subject was present) easily create a claim for age discrimination.

Unfortunately it is very likely where employees continue working past their traditional retirement ages (thereby occupying jobs that could otherwise have permitted the promotion of younger employees) that there could be a backlash. Employees who perceive their promotion is blocked might deliberately use ageist comments against those who formerly would have been retired. Action required: Review Dignity at Work policy taking account of the above, and re-issue it (preferably through face to face coaching sessions) to all employees emphasising the need to avoid ‘age-related’ comments, to be positive about older workers working past traditional retirement dates and not to patronise younger employees.


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Working environment As well as ensuring bullying etc. on an ageist basis does not occur, employers will also have to ensure that they plan for the implications of people working longer than has been customary. Not only will this impact promotion prospects for younger employees (see above), but also, ultimately, there could be instances when the employer thinks older employees are ceasing to perform adequately – a view not shared by the subject employee(s), resulting in capability investigation/disputes. Since these could involve longer service – and very loyal employees – this could be particularly unfortunate. Action required: Ensure there is a capability procedure which is applied to all who are perceived to be performing at less than the required standard, and that whilst this is applied to all, that it is geared to dealing with these particular problems.

Redundancy If required to lose employees, an employer is legally required to make redundancy payments to those employees having a minimum of two years service. The current formula is age/service based and thus needs to be changed prior to the new law being implemented. In any event, in determining those to be made redundant, age must no longer be used as the criteria or one of a number of factors making up the criteria. Action required: Change any stipulated basis in an existing redundancy policy which is age related and substitute entirely objective bases (or, preferably, in view of the legal obligation to consult in anticipation of there being redundancies); have these as suggestions to be discussed with employees’ representatives elected for this purpose. In consideration of possible redundancies, it is essential that there are elected employee representatives that should be consulted. If there are no representatives and a redundancy is challenged, an employer will be told by a Tribunal that they should have arranged elections, and will probably hold the dismissals unfair.

Pension Traditionally, the commencement of the payment of a pension has been linked to a ‘retirement date’. This is a logical convenience but can only apply where there is a fixed retirement age. Once the later has been abandoned there seems little need for such a link to be continued. Many pension schemes allow a pension to be taken earlier (at a discount) or later (with some enhancement). Employers (and through them pension trustees) should be encouraged to ensure there is


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a separation of the dates that pension payments commence and retirement starts. There should then be nothing to stop a member of a pension scheme taking their pension and continuing to work either on a full or part-time basis. Ultimately, assuming employers can afford to provide pension schemes (which, due partly to ill-conceived governmental action, seems unlikely), pension schemes should be made far more flexible, allowing employees to remain members and to contribute until a retirement age of their choosing. Action required: review/alter pension rules to ensure that the payment of pension is not dependent on retirement. Total flexibility may be the best solution to achieve.

Retirement This is possibly the area likely to cause employers the greatest problems since it can no longer be assumed that an employee will retire at a set date. Indeed, why should it? There are some employees perfectly capable of performing well past the traditional (and still discriminatory!) State pensionable dates for the sexes; and equally some who for one reason or another may be incapable of working whilst much younger. The ‘but for’ rule might be particularly valuable here. Applying the test, ‘but for’ this person being 65 would we be encouraging them to leave?’ is a very pertinent question. Relatively few employers probably need a fixed retirement age – other than where objective criteria (e.g. safety considerations) dictate. Indeed, there could be positive benefits in abandoning a fixed retirement age and encouraging employees to work longer – until they no longer wish to work – or the employer feels they are no longer capable of performing the requirements of the job. Many people facing retirement may wish to continue working (for companionship, a sense of fulfilment, to offset financial pressures, etc). However, they may not necessarily wish to work for too long on a full-time basis. Approaching the current challenges and changes to traditional working arrangements positively could benefit employers. Thus, the increasing number of rights and benefits given to those with family responsibilities who are normally younger employees will lead to a situation where such employees, during the ‘childhood’ of their offspring, want to work on a less than full-time basis. This will, in turn, lead to an increasing demand for part-time working to cover the hours those employees are not working. Allowing personnel who would otherwise have retired at 60 or 65 to work on, could help create a reservoir of skills and experience, available (for example) to cover the hours no longer being worked by those using ‘family friendly’ rights. However, great care must be taken that such a suggestion does not emanate from the employer since this might be construed as putting an older person under pressure to work part-time which could itself be discriminatory.


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Enforcing retirement In the same way that excluding employment applications from older people since they are not deemed to be ‘with it’ enough to work in a ‘youthful’ environment is discriminatory, trying to justify a retirement on age grounds alone could also be discriminatory. The DTI plan on enforcing retirement suggests: •

a common default retirement age of 65 (if no other age is specified) applicable to all employers

•

initially (subject to a review in 2011) enforcing retirement at or after age 65 will be a fair reason for dismissal

•

employees have a right to ask to work past retirement date

•

where an employer insists a person is to retire they have to give the employee at least six months notice and give them a right of appeal (see ‘termination form’ below)

•

employees must be told that they have a right to make a request NOT to retire on the suggested date. If such a request is made then the employer must consider this objectively

•

an employee’s request to work past retirement must be made not later than six weeks prior to the stated retirement date. The employer can resist this with objective reasons (which may not be able to be challenged in a tribunal)

•

there must be a meeting and then a decision must be made within two weeks of the meeting. The employee then has two weeks to appeal. If the process is still ongoing at the date of retirement then the employee can continue in employment until it is decided

•

an employer can set a lower retirement age than 65 if it is ‘appropriate’ and can be justified

•

service related benefits must be retained

•

insurance cover (i.e. as an employment benefit) must not be denied on grounds of age unless this can be objectively justified

Action required : Set up procedure which caters for this greater flexibility of approach to employees retiring and coach those involved to ensure they apply the new rules and make no assumptions in any way that assume an employee will retire at a set date, unless that employee has themselves indicated they will be doing so.


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Transitional arrangements If giving notice to enforce retirement before 1st October 2006, at least 4 weeks notice (or the contract notice if longer) must be given. The employee can apply to work past the retirement date after the contract has terminated (but not more than four weeks after termination). If giving notice to enforce retirement after 1st October 2006 to retire before 1st April 2007, notice must be given in accordance with the longer of statutory or contract notice. The employee must give notice of their wish to work on at least four weeks before the retirement date indicated. In both cases there must be meetings (to which the employee has a right to be accompanied) and the employee must have access to an appeal process ‘within a reasonable period’.

Procedure 1.

Determine whether compulsory retirement date can be objectively justified. If so, the reasons for making such an assumption should be listed and made available to all involved well in advance.

2.

If a compulsory retirement date cannot be objectively justified, set up a timetable based procedure so that each employee is given an opportunity to make known their preference regarding their personal retirement date.

3.

Each year list the dates of those whose next birthday brings them to the age set by the employer as the ‘normal’ retirement.

4.

If the ‘normal’ retirement date is ‘65’, the employer has two options, either a)

to stipulate that the employee should retire at that date (whilst informing them that they have the right to request they be allowed to work on) or

b)

to leave it to the employee whether they wish to retire or not since the employer has no objection to them working on.

5.

At least six months prior to the retirement date issue a note to the employee pointing out that they are due to retire on the set date and, •

if the employer wishes them to retire, that they have the right to request that they be allowed to work past that date (see Forced retirement below)


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•

if the employer has no objection to them working on, whether they wish to do so or not (see Optional retirement below).

Note: Breach of this procedure could lead to a tribunal claim where, if found culpable, an employer could be required to pay a maximum of eight weeks compensation (up to the maximum ‘weeks pay’ – a figure which is reviewed annually – see data sheet).

Forced retirement – procedure 1.

A form such as the following could be used:

RETIREMENT NOTICE

[Date]

To [employee to be retired] As you are aware, you will attain the age of [age stipulated as retirement age by employer] on [date] and we wish you to retire at that date. You have the right to request that you be allowed to work beyond this date. We would like to discuss your proposed retirement on [date, time, place]. Please attend this meeting at which you may (if you wish) be accompanied by another colleague or Union representative. If your retirement date is confirmed you will have the right to appeal to [name] within two weeks. Please sign and date the attached copy of this note.

2.

An employee has until the 6th week before their stated ‘retirement date’ to indicate whether they wish to work past it, but the employer could be wise to try to encourage them to clarify their intent earlier than this so that the matter can be discussed and appropriate plans made.

3.

Assuming the employer agrees to the employee working past their retirement date, unless the employee wants a revised contract (possibly working part-time etc) the existing contract should continue. Enforcing different terms would almost certainly be discriminatory.

4.

If the employer does NOT agree that the employee should work past their retirement date then this should be set out in a follow-up letter after the meeting, which must be given to the employees within two weeks. Such a letter should point out that the employee has the right of appeal against such a decision and might usefully provide an appeal form.


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REJECTION OF RETIREMENT REQUEST On [date] we discussed your request to work past [date], which is your [65th] birthday. We have given your request careful consideration but must reject that request because [reasons]. You have the right to appeal against our decision and a form is enclosed for this purpose. You must lodge an appeal within two weeks with [name].

5.

If the employee appeals, then the appeal must be heard. Assuming that is unsuccessful, the employer should confirm this. Retirement should not be enforced until after the retirement date or date of decision of the appeal process, whichever is later.

Optional retirement – procedure 1.

Notify the employee

RETIREMENT NOTICE

[Date]

To [employee] As you are aware, you will attain the age of [age stipulated as retirement age by employer] on [date]. We have no objection, should you wish, to you continuing to work past this date. However, we would like to discuss this with you on [date, time, place].

2.

This is not a meeting to enforce retirement, so the employee probably has no legal right to be accompanied, however, in the interests of good employment practice it might be advisable to allow this, if requested.

3.

Assuming the employer agrees to the employee working past their retirement date, unless the employee wants a revised contract (possibly working parttime etc.) the existing contract should continue. Enforcing different terms would almost certainly be discriminatory.


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Postscript a)

In its booklet ‘Age and Employment’ the Chartered Institute of Personnel and Development states •

age is a poor indicator of job performance and is rarely a genuine employment requirement

•

it is misleading to equate physical and mental ability with age

•

age discrimination has harmful effects including reduced selfconfidence, self-esteem and motivation.

b)

The ongoing challenge for employers, of course, will be to ensure older people can contribute – providing appropriate training, support etc. Some employers already using older employees find them as reliable and enthusiastic as other employees – and why should they not be?

c)

ACAS has published new guidance on Age Discrimination covering key issues including training, equal opportunities, recruitment, promotion, performance appraisals, sickness pay, conditions, benefits, redundancy, pensions, and retirement to ‘help employers to recognise that being agepositive is a business advantage, not just a legal requirement’. (www.acas.org.uk/media/pdf/d/t/6683_Age_and_the_Workplace_ AWK.pdf)

The ‘but for’ test ‘But for this person being this age (young or old), would we be treating them in this way, requiring them to comply with these rules or procedures not applicable to others of different ages, or not allowing them access to benefits available to others irrespective of age?’


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Chapter 6 Non-standard employees discrimination A. Part-timers.......................................................................................83 B. Fixed term workers ........................................................................86 C. Homeworkers .................................................................................90 D. Agency staff.....................................................................................93 The ‘but for’ tests .................................................................................94

Chapter 6 Non-standard employees discrimination With the introduction during the 1980s of (potentially costly) employment protection rights, a number of employers realised that by ‘hiving’ off permanent full-time jobs from the established workforce and using ‘temps’, part timers, fixed term contracts etc., they could minimise the costs of such protections. The EU determined to counter this by developing the ‘comparability principle’ which stipulates that if a non-standard worker is performing work that is comparable to a standard worker then, unless different treatment can be objectively justified, the non-standard worker’s rights and benefits should be comparable. Thus, a part-timer is compared to a full-timer, agency staff (temps) and those on fixed term contracts to those doing the same jobs on a permanent basis, and those working at home to those working in the traditional workplace.

A. Part-timers Under the Part-Time Workers (Prevention of less favourable treatment) Regulations (PTW(Polft)R), since 1st July 2000 employers have been required to provide similar terms and conditions for those working fewer than full-time hours, where there are full-timers carrying out the same or broadly similar work to the parttimers, unless differences in their treatment can be ‘objectively justified’. Unlike most of the other anti-discriminatory laws, it must be said that this one is not generally known or understood. Neither ‘full-time’ nor ‘part-time’ are defined or quantified, since it is for each employer to determine what are the full-time hours for each job and there could be as wide a range of ‘full-time’ hours within one employer (for different jobs) as there could be between several employers. The required comparability is thus with those working full-time hours for each particular job. ‘Part-time’ is any normal working hours that are less than full-time. If full-time is 40 hours per week, anyone working fewer than 40 hours is classified as a part-timer. Thus, where one employer’s full-time hours are 35 hours a week and a neighbouring employer’s full-time hours are 40 hours a week, a person working 39 hours a week for the latter is working part-time even though they are actually working four hours a week more than the full-time person ‘next door’.


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Traditionally, many part-timers have been provided with terms that are inferior to those of full-timers and this practice for jobs that are the same or broadly similar has been illegal (unless objectively justified) for over six years.

Example An employer has engaged two cleaners – A is full-time on 35 hours a week and B is part-time on 15 hours a week. If A and B are essentially doing the same work – that is the same or broadly comparable work – then the terms and benefits that should be applied to A and B should be the same. However, if A works more than 35 hours a week and is paid a premium rate for overtime (e.g. time and a half) there would not normally be an obligation to pay B a premium rate should he or she work overtime. B would be expected to work 35 hours before any premium rate should be paid. (WARNING: In Europe, however, there has been at least one case where it was argued that not allowing a part-timer to participate in such a premium available to full-timers was discriminatory.)

Pro rata benefits Obviously the problem with some benefits would be the impossibility of applying a proportion – usually related to hours worked divided by full-time hours (that is 15/35ths in the above example). For example, private medical cover for fulltimers may be deemed necessary by the employer so that there is available urgent medical treatment, since the loss of full-time cover of a job is considerably detrimental to the business. Whilst one may not be able to ‘split the benefit’ (i.e. cover in this case) on a 15/35ths basis, if medical insurance is available on a range of scales a lower lever may be able to be arranged. In that instance the employer might be able to use the ‘objective justification’ to argue that it would not be appropriate to provide such cover, since a part-timer going sick would not have the same critical effect on the business. This means that where similar jobs are being performed on a part-time and full-time basis each benefit given to the full-timer must be considered and either implemented on a proportionate basis or its denial to the part-timer objectively justified. Where all the jobs are being done on a part-time basis and there is no full-time ‘comparable job’ being undertaken, there is no comparability requirement. Care would need to be taken, however, if this was the case, should one of the existing part-timers (or a new employee) begin to work full-time. If, as a result, they were given additional benefits this could impact the remaining part-timers.


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Holidays Under current legislation every person working on a contract of employment or any other contract where the relationship is not one of client and provider of a service (i.e. where the worker is running a business) must be given four weeks paid holiday during a holiday year. A full-time cleaner (as in the example above) is entitled to four weeks at 35 hours each week. The part-timer (above) is also entitled to four weeks holiday – albeit that their ‘week’ only consists of 15 hours. Other than this obligation, employers are not required to pay for other holidays – for example, the Bank Holidays. However, the Work and Families Bill being considered by Parliament as this report was being finalised, grants to the Government the right to require UK employers to give their employees paid Bank Holidays. Obviously, if a full-timer has holiday (or other) rights additional to the legal requirements, then the part-timer doing the same or broadly similar job must be given an appropriate proportion unless the difference can be objectively justified.

Example In the above example, if A (the full-timer working Monday to Friday for seven hours each day) was given eight paid bank holidays, then even if B’s hours or work were such that none of the Bank Holidays in a year fell on a day when B would normally have worked, B must be given a proportionate benefit. In this case B would be entitled to 15/35ths of 56 Hours (7 hour day x 8 bank holidays) or 24 hours worth of holiday. Since holiday should not be paid instead of being taken, B should be allowed to take 31⁄2 days holiday, assuming he works the whole holiday year – or an appropriate proportion if he does not.

The same or broadly similar Regulation 4 of the PTW(Polft)R stipulates that a full- time worker is a comparable full-time worker in relation to a part-time worker if both workers are employed under the same type of contract and engaged in the same or broadly similar work, having regard to whether they have a similar level of qualifications, skills and experience.


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Case study In Matthews v Kent and Medway Towns Fire Authority, Matthews and several of his colleagues are retained firefighters. Retained firefighters are to some extent volunteers in that they usually have main employment which is not with the Fire Brigade and provide paid additional or substitute cover to their fulltime colleagues. In some parts of the country (e.g. Cornwall) retained firefighters provide most of the fire cover. Mr Matthews claimed that the job he did – fighting fires – was broadly similar to that performed by the full-time firefighters and, therefore, he should be entitled to join the firefighter’s pension fund and be covered for sickness benefit. Although his claim did not succeed in either the employment appeal tribunal or in the Court of Appeal, in March 2006 the House of Lords (in a majority decision) held that although there were differences (for example, full-timers would get far more involved in training the public and preventative measures) their work was sufficiently similar for them not to be discriminated against. The fact that the full-time firefighters did some extra tasks could not prevent the work of the retained firefighters and the full-time firefighters being the same or broadly similar. The case was returned to the original tribunal with a request that they should consider the similarities between the two working arrangements rather than the differences.

This is a very important decision since, had the House of Lords backed the Court of Appeal’s decision (had it done so there would probably have been a further appeal to the European Court of Justice), that would have rendered very questionable the whole intent of the Regulations themselves – the ‘same or broadly similar’ test requirement would, to no small extent, have been negated.

B. Fixed term workers A very popular method of ‘hiving off’ permanent employees was by using the fixed term contract (FTC) concept. This gave a non-employee a form of retainer for a set period which minimised – or sometimes completely excluded – normal employment rights. To combat this, the EU enacted a directive which protects those working on such contracts and effectively reinstates certain rights usually only enjoyed by employees. Under the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations (FTE(Polft)R), since 2002 those working on a fixed term basis and doing comparable work to a permanently employed person


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must be treated in a similar way to such permanently employed personnel, unless the differences can be objectively justified. Thus, a fixed term worker: a)

generally must not be treated less favourably than that permanent employee and must, for example, be given similar occupational holidays, sickness and other benefits etc.

b)

must be advised of permanent vacancies in case they wish to apply to transfer to permanent status. Thus, if there are two jobs of a comparable nature – one being performed by a permanent member of staff and one by someone who has signed an FTC – should the permanent staff member leave, the person on the FTC must be told of the vacancy. Of course, assuming they were performing a reasonable job, most employers in such circumstances would be very pleased to have available such a potential recruit already well versed in their expectations and ethos.

c)

have a right to receive an explanatory statement if they believe they have been subjected to less favourable treatment.

d)

are protected from sanction if they try to enforce the rights given them by the Regulations.

e)

have the right to convert to permanent employment once they have worked under an FTC (or a succession of shorter FTCs) for four years. Since statistics indicate that in the UK only 30% of employees stay with the same employer for more than four years, a person working on a succession of FTCs lasting more than four years could well be far more ‘permanent’ than many employees.

f)

cannot waive their redundancy rights even if such a clause is inserted in their FTC. This was very common for those engaged on such a contract for more than two years. Under the Redundancy Payments Act, if an employer makes redundant a person who has worked for him for more than two years, he must pay that person a stipulated sum of money. Since those working on a FTC know from the outset that there is a set termination date, it seemed logical to many that no redundancy payment should be made. That avoidance of what would otherwise be a financial obligation is ruled illegal by these regulations. It must be said that for someone working on a FTC of say three years, the actual redundancy payment itself would be pretty small. Currently (subject to Age Discrimination legislation) the payment depends on age/service and would, in that example, range from 3 to 4.5 weeks pay to an annually reviewed weekly maximum (see Data sheet).

Obviously, if there is no permanent employee carrying out the same or broadly similar work to the FTC worker, then there is no need for ‘comparability’.


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‘Breaking’ continuity Many of those working on FTCs may be given a succession of contracts. Sometimes this may be a deliberate ploy on behalf of an employer to try to ensure there are breaks between each FTC – thus breaking continuity. This was a strategy to some extent endorsed by the Courts as the following case study demonstrates.

Case studies In Booth v United States of America, the EAT accepted that an intentional break between two short (fixed) term contracts, the purpose of which was acknowledged to break continuity of employment, was acceptable and did indeed break continuity. The EAT stated ‘if an employer is able to employ people in such a manner that the employees cannot complain of unfair dismissal... that is a matter for him’.

Booth is a fairly old decision and it may be unwise to rely on it. After all, if the two parties who agreed to the strategy then fall out, the worker will be able to claim that it was merely a device to avoid continuity and the employer may be hard put to demonstrate otherwise. If the tribunal believe there is what is called ‘an over-arching contract’ any gaps may be disregarded and continuity granted.

Case studies In X v Secretary of State for Education and Skills it was held that education advisers working on FTCs were entitled to the same enhanced redundancy terms as permanent employees, and implied that if there was a break between one FTC and the next, this break would be disregarded and there would be assumed continuity to cover the whole period worked. This is a tribunal decision which is persuasive but not binding on other tribunals. However, in Cornwall CC v Prater the EAT held that a teacher who had accepted a succession of short term teaching contracts was to be regarded as having been continuously employed by the local authority. The periods between contracts were held to be temporary cessations of work. Being an EAT decision this is binding on tribunals unless overturned by a higher court.


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Termination In October 2004 the rules for employers’ administration of discipline changed so that if an employee was being disciplined and the result might be their dismissal then the ‘three stage’ process had to be applied. The employee must be given: 1.

reasonable notice in advance of a hearing

2.

the right to be accompanied to the hearing and

3.

the right of appeal should the decision following the hearing go against them. As set out above, the employers obligation to those working on an FTC is that they must apply the same disciplinary arrangements to them as they do to permanent employees. Thus, the termination of an FTC would seem to require a similar process to a disciplinary hearing, which could result in termination. It would appear that it would be safest to follow the same procedure.

Giving a person working under an FTC a form such as the following (a reasonable time in advance of the meeting) might be applicable even though both parties knew the termination date from the outset of the contract.

To [fixed term employee]

[date]

As you are aware your fixed term contract of [period] expires on [date]. We would like to discuss the expiry of your contract on [date, time, place]. Please attend this meeting at which you may (if you wish) be accompanied by another colleague or Union representative. If the termination date is confirmed you will have the right to appeal to [name] within [e.g. five] working days. Please sign, date and return the attached copy of this note.

Since the FTC worker always knew when it was to come to an end, the fact that at such a meeting the date is confirmed should hardly come as a surprise. However, a process of appeal must be allowed. WARNING: Both on the question of continuity, where there is a break between FTCs, and on the use of the statutory disciplinary process for termination of an FTC, it would be useful if there were conclusive test cases on these matters. (However, employers should always remember the old advice ‘never be a test case’!)


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C. Homeworkers The development of communication technology has led to an increase in the number of people using their homes for a complete range of work – and again this provides scope for permanent employees to be ‘hived off’. The homeworking trend is expected to continue in both those undertaking such work from home and the type of work undertaken. The Office of National Statistics (ONS) calculate that there are over three million home or ‘tele’ workers in the UK (although other researchers claim a much higher figure – one report claimed as many as ‘one in four‘ work wholly or mainly from home). It has been estimated that the ONS figure (which itself represents an increase of 65% over the past four years) could grow to over eight million by 2010. Many employers deal with homeworking casually, but a greater delineation of expectations and arrangements is needed than with a workplace-based employee. At the workplace, supervision and control is carried out informally through personal contact – very often without either party being fully aware of it. This effect is largely absent with homeworkers. There needs to be some substitute for the lack of direct supervision – e.g. regular contact arrangements, regular exchange visits to the workplace by the homeworker and to the home premises (the homebase) by supervision etc., accepted measurement of work quantity and quality and so on. Further, standards of quality and output may be easy to set where, say, a number of products are generated, but where the work is administrative or creative, output can be difficult to assess. Despite the employee using their own home as their place of work, that location becomes an extension of the employer’s place of work and needs to be treated as such. Supervisory access, control of the employee, insurance of property (both house and equipment) and liabilities, travelling arrangements to the base office etc. all need to be clarified. Normally the homeworker, where there is a dedicated room for the employer’s business, will expect to receive payment for such use. The equipment they need may be provided by the employer but questions of liability, insurance, recovery etc. must be addressed. If the homeworker is an employee they are entitled to a contract of employment but in addition there are unique contractual arrangements regarding the homeworking which need either to amend or to sit alongside any employment contract. It is perhaps safest for those wishing to use homeworkers to adopt a policy addressing all these matters (see Appendix 4).


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Comparability Under draft EU legislation those who work away from the ‘main place of work’, e.g. homeworkers, may gain protection so that they will be entitled to the same employment rights and conditions as those who work (doing the same or broadly similar work) in the main place of work (the comparability principle). Those carrying out such work in their home must do so voluntarily and would be given the right to transfer their work back into the traditional workplace. This is only a draft directive and, since a similar proposal regarding Agency workers (see below) has now been shelved as ‘unnecessary’, this initiative may not proceed – at least in the near future. If the EU comparability rules do apply, the payment made to a homeworker would need careful consideration. A recent Times report indicated that every month employees spend over £200 at work – £120 on food, £35 on work clothes, and £50 on travelling. Obviously a homeworker would not spend at least part of this, which would need to be reflected in the rate even for comparable jobs.

Legal implications 1.

If the homeworker provides their own computer (or operates a computer not linked to the employer’s computer) they may need to register under the Data Protection Act and advice should be sought from the Information Commissioner.

2.

In the 2003 Budget employers were given the right to pay their homeworkers £2 per week tax free, without supporting documentation, to provide recompense for the additional costs of working from home. Larger amounts can be paid tax free but only if there are supporting invoices.

3.

In a court case brought by one of their own employees – Ms Tully – Inland Revenue recently lost a case, the dual effect of which is that: •

no business rates will be charged against people using part of their house to work at home, provided they do not employ people to work at the house on their business and the house does not lose its ‘domestic character’, and

•

capital gains tax will not be sought on any ‘profit’ (made on selling the house) related to the proportion of the house that was used as a business.


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Case study In Bridges and ors v Industrial Rubber Plc, Mrs Bridges and a number of colleagues carried out finishing work for the respondent at home. They were paid in accordance with the amount of work undertaken. A previous case brought by the claimants had resulted in them gaining the benefit of the National Minimum Wage, and as a result the company issued a new agreement for their work which stipulated that it could not guarantee any work and it was under no obligation to offer work to the claimants. When the work was offered by the company they were under no obligation to accept it. The agreement went on to confirm that for Health & Safety reasons the homeworkers had to carry out the duties personally where the work involved the use of the company’s tools, but where this was not the case they could substitute other persons to do the work offered. The agreement concluded with the words ‘the homeworker shall have the capacity of an independent contractor’. However, when the homeworkers went on holiday they were required to book their holiday in advance with the company and were paid holiday pay. They also received sick and maternity pay if appropriate. A tribunal found there was no mutuality of obligation and thus the homeworkers were not employees. This was confirmed on appeal by the EAT.

(Note: Some of AA’s call centres for emergencies are operated by people working at home. Nearly 10% of BT’s staff are ‘remote’ employees – a manner of working that enables those who are disabled to work, improves staff retention, encourages parents to return to work, reduces absenteeism, reduces overheads (smaller commercial properties required etc) and increases productivity. BT estimates that the productivity of its 7,000 homeworkers has increased by nearly a third.)

Flexible working The right to objective consideration of a request for flexible working (see Chapter 2) covers not only the ‘hours’ that the employee works but also the ‘place’ where the work is conducted. Accordingly an employee’s request for flexible work could include a suggestion that all or some of the work be carried out at home, enabling both child-rearing and working obligations to be met. The bases for rejecting such requests are the same as those for a change of hours but need to be assessed objectively. (See Dillon v Rentokil in Chapter 2).


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D. Agency staff Within the whole of the EU there are around one million ‘Agency’ staff, that is ‘temps’ supplied to their clients by Employment Agencies. 700,000 of the EU’s ‘temps’ are located in the UK. To protect such persons from perceived ‘exploitation’, the EU was proposing that temps performing work which is broadly comparable to those working on ‘standard’ contracts on a permanent basis should receive the same rights and benefits as those comparators unless the differences can be objectively justified. Until early 2006, there was a proposal that the comparability principle should apply to ‘temps’ supplied by employment agencies if the ‘temp’ was retained by a client for more than six weeks. Currently this proposal has been shelved as part of an abandonment of ‘unnecessary’ directives. However, it can be difficult to assess the status of a ‘temp’ supplied by an Agency and the description the parties give to their working relationship is not conclusive. The sole determiners of any ‘employment relationship’ are Employment Tribunals, although requirements of HM Revenue may be irrelevant to this decision.

Case studies a)

The mutuality test. If a person is in business on their own account and risks their own money, and can send a substitute to perform the work (and can hire and fire them) etc., almost certainly they are NOT an employee. In Carmichael v National Power (NP), NP trained Mrs Carmichael to act as a guide showing visitors around their power station. When they had such a requirement, NP would ask her if she could provide guiding services. She could decline. The House of Lords stated that since there was no ‘mutuality of interest’ (i.e. NP were not obliged to offer her work; she was not obliged to perform it) between the parties, she was not an employee.

b)

The control test. If one party can stipulate the time the work is to be done, is contractually obliged to provide work for them and (perhaps above all) can discipline the person if they fail to comply with rules etc, almost certainly that person is an employee. In Davidson v Motorola, Motorola asked an agency to supply a temp who turned out to be a very poor worker. They started giving him warnings and eventually ‘dismissed’ him. He claimed unfair dismissal against Motorola. The first thing the tribunal had to decide was whether he was an employee or not. Because Motorola had applied discipline to


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Davidson he was held to be an employee. (Of course they should have told the agency to remove him.) c)

The time test. In Dacas v Brook Street Bureau (UK) Ltd, an agency supplied a worker to Wandsworth Council for four years. When Wandsworth asked the agency to remove her, the agency also took her off their books. She claimed unfair dismissal against both the agency and the Council. The EAT decided that she was an agency employee. However, the Court of Appeal (Wandsworth having dropped out of the case) decided that she was not an employee of the agency but that control etc. had been exercised by Wandsworth, suggesting that she was their employee. A minority of the Court held there was no employment relationship but the majority felt that in such a situation one of the end users (e.g. Wandsworth) ‘had to be’ the employer. One judge felt that there was an ‘inexorable inference’ that she had become a Council employee by the time of her dismissal.

To avoid any possibility of creating employment (where it is not wanted) it may be better to ensure that no ‘temp’ is used for more than, say, 11 months (to ensure that a year’s service is not created and thus there can be no basis for an unfair dismissal claim).

The ‘but for’ tests Unless differences can be objectively justified, where the work being done is in each case the same or broadly comparable to that being done by the comparator: a)

‘But for this person working part-time would they receive benefits etc. available to those working on a full-time basis?’

b)

‘But for this person working under a fixed term contract would they receive benefits etc. available to those working on a permanent contract basis?’ and, if and when the legislation is enacted,

c)

‘But for this person performing most of their work at home would they receive benefits etc. being received by those working in the traditional workplace?’


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d)

‘But for this person being a temp from an Employment Agency (or self-supplied) and who has worked for us for at least six weeks, would they receive benefits etc. being received by those working on a permanent contract basis?’


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Chapter 7 Human rights A. Rehabilitation of Offenders ..........................................................97 B. Whistleblowing .............................................................................100 C. Human Rights ...............................................................................104

Chapter 7 Human rights

A. Rehabilitation of Offenders The basis of the employment relationship is mutual trust and confidence. If an applicant suppresses information about a criminal conviction it could be argued that this breaches that essential basis between the parties. There is nothing to stop employers asking applicants for details of any criminal convictions, but under the Rehabilitation of Offenders Act 1974 (RoOA) certain offences become ‘expired’ after various periods of time and need not be disclosed and/or must be ignored. Failure to do so – e.g. demanding details of all sentences whether time-expired or not – would effectively be discrimination in respect of an expired sentence. (The criminal records of those who undertake jobs which are exempt from the RoOA (that is those requiring people to deal with children or vulnerable adults, and for accounting etc jobs) are exempt from the RoOA and never ‘wiped clean’.)

New legislation To assist employers in knowing whether applicants have a criminal record, under the Police Act 1997, the Criminal Records Agency was set up to provide a range of certificates giving details of criminal convictions. The Agency is still only able to issue two of the required certificates, with the first certificate expected to be made available soon. 1.

Criminal Conviction Certificates will be available to individuals and (with the individual’s agreement) to employers to give details of all ‘unspent’ convictions. Those who wish to know a prospective employee’s record could stipulate in the employment offer letter that the person will agree to a CRB (Criminal Records Bureau) check (when available) and could withdraw the offer of employment if this is not agreed.

2.

Criminal Record Certificates are available to both individuals and registered employers in respect of occupations exempt from the RoOA (e.g. those working with children and vulnerable adults etc.)


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3.

Enhanced Criminal Record Certificates relating to those working on a regular unsupervised basis with children, for licensing purposes and relating to judges and magistrates prior to appointment, are available to both individuals and registered employers.

Policy 1.

Where a person applies for a position, the organisation will not take into account previous time-expired convictions as laid down in the Rehabilitation of Offenders Act and will, should it be made aware of unexpired previous convictions, endeavour to assist the applicant to find and adapt to employment in any way possible.

2.

Applicants should apply to [name] for such assistance, and may do so in complete confidence.

3.

Where questions are required to be asked regarding past records, these will reflect the principles of the Act and will thus be composed taking into account the ‘time-expired’ nature of the offence.

4.

Should an employee be convicted of an offence, the circumstance and type of offence will be considered in relation to their continued employment before a decision is made regarding retention. If it is felt that the offence is not one which affects continuation of the employment, i.e. it has no bearing on the type of work being carried out, then employment may be able to continue. If a custodial sentence is imposed, in excess of the time that could be covered by the application of [the leave of absence] and [holiday amalgamation] rules, it may be necessary to treat the contract as having been terminated and, thus, the employment as having ended. However, (depending on the offence) this will not necessarily preclude the employee from applying to rejoin the organisation on release, when the application will be reconsidered.

5.

Managers should familiarise themselves with rehabilitation periods. In the following list the offence is shown first with the rehabilitation period following it. Periods commence with the date of conviction, and if a further offence is committed, the rehabilitation period may be extended. a)

Disqualification orders, or orders imposing a penalty etc.: Until the order ceases

b)

Absolute discharge, discharge by children’s hearing under Social Work (Scotland) Act: six months

c)

Remand home or approved school custody: one year after cessation of order


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d)

Conditional discharge, care supervision and approved school orders: one year from date of conviction or the order ceases, whichever is the longer

e)

Probation orders (person aged under 18): two years from date of conviction or date probation order ceases (whichever is longer) (person aged over 18): five years from date of conviction

f)

Detention of up to six months, order for detention in centre: three years

g)

Mental hospital order: five years from conviction or two years from the cessation of the order whichever is longer

h)

Fine or other sentence subject to rehabilitation: five years

i)

Borstal training, detention of over six but not more than 30 months, imprisonment or youth custody for six months or less: seven years

j)

Imprisonment or youth custody for over six months but less than 30 months: ten years

6.

The following sentences are not subject to the Act and hence do not become spent at any time: a)

life imprisonment (and life custody)

b)

imprisonment or youth custody for a period in excess of 30 months

c)

sentence of preventive detention

d)

a sentence of detention during the Sovereign’s pleasure.

Note: The Act does not apply to teachers (and anyone dealing with the young), accountants etc., whose offences must be declared irrespective of the age of the offence. As set out in this policy, the fact that a person has an unexpired conviction does not necessarily mean they should not be employed. The subject matter may be such that it does not impact employment. However, it is arguable that the employer has a right to know.

Drivers To check a driver’s record, questions must be posed in a similar manner related to the offence expiry periods set out above. •

In the last four years have you received an endorsement (or penalty points) for a driving offence?

•

In the last five years have you received a fine for a driving offence?


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•

In the last seven years have you received a prison sentence of less than six months in respect of a driving offence?

•

In the last 11 years have you received a penalty in respect of a drink/driving offence?

If so, in each case, please give details. Applicants should be told that failure to provide accurate answers will be regarded as gross misconduct since the information provided is the basis on which insurance cover is provided. Inaccurate information may lead to the employee driving without insurance cover and/or the insurer refusing to accept a claim – potentially leaving the driver (and, ultimately, the employer) to pay costs and/or compensation incurred.

B. Whistleblowing The Public Interest Disclosure Act (colloquially known as the ‘whistleblowing’ Act) provides protection for those that report or bring to the attention of the authorities wrongdoing (or the covering up of wrongdoing) in their organisations after their internal protestations have been ignored. The PID Act has been described as a ‘whistleblowers’ charter although relatively few may be able to rely on the protection it provides. It covers ‘workers’ – thus including employees and the self-employed, as well as agency workers and the like, and Crown servants.

Qualifying disclosures Protection is given to those making certain ‘qualifying disclosures’. A qualifying disclosure is any information which tends, in the reasonable opinion of the worker (which is an objective test in each case), to show a relevant failure. The relevant failures include: •

a criminal offence has been, is being or is likely to be committed

•

a miscarriage of justice has occurred, is occurring or is likely to occur

•

someone has failed, is failing or is likely to fail to comply with a legal obligation to which they are subject

•

the health and/or safety of any individual has been, is being or is likely to be endangered

•

the environment has been, is being or is likely to be damaged

•

information relating to any of the above has been, is being or is likely to be deliberately concealed.


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Course of action The first resort of a potential ‘whistleblower’ must be to the employer and if a qualifying disclosure is made in good faith to an employer (or some other person in the belief that they are responsible for the matter) or to a third party in accordance with a procedure authorised by the employer, then it will be a ‘protected disclosure’. Alternatively, if the employee reasonably believes that if he discloses internally he will be subject to a detriment, or that the evidence will be concealed or destroyed, or he has previously made a similar disclosure without action, or it is reasonable for him to do so, disclosure may be made externally to a regulator. Where disclosure is to be made to a regulator then not only must the matter comply with the above requirements but also the complainant must a)

believe that the information is substantially correct

b)

believe the failure lies within the remit of the regulator and

c)

not be making the disclosure for personal gain.

Protection Any clause in a contract which prohibits workers from exercising these rights is void, and any employee (there is no minimum service requirement) who suffers a detriment has a right of action. If the detriment falls short of dismissal then any employee or worker can complain to a Tribunal. In the event of dismissal, this will be regarded as automatically unfair by a tribunal, and a successful claim for unfair dismissal for whistleblowing can lead to unlimited compensation since ‘whistleblowing’ and reporting a Health and Safety matter are classed as ‘protected disclosures’ and the annually reviewed limit (see Data sheet) for unfair dismissal does not apply.

Whistleblowing policy All employers may be best advised to adopt a whistleblowing policy with an indication of to whom suspicions etc. should be reported. Under current listing rules of the London Stock Exchange, companies whose shares are listed on the Stock Exchange are obliged to have a whistleblowing policy. In addition, many charities have adopted such a policy.


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Case study Abbey National made a payment of £25,000 to a manager who voiced his concerns regarding collusion over payments made to certain ‘suppliers’. As a result the bank’s then Marketing Services Director was found guilty of – and jailed for – receiving bribes for authorising invoices in respect of goods which had not been delivered or had been delivered only in part, and seven other employees were also found guilty and jailed. In referring to the award, a bank spokesperson said ‘We hope this will set an example for all our employees and for other employers. Staff should feel able to speak out if they think something is wrong.’

At the time the shares of Abbey National were listed on the Stock Exchange, but this predated the obligation on listed PLCs to have a whistleblowers policy so the company did not have such a policy. The person who made the disclosures felt so isolated within the company that even though he was proved correct he felt he had to resign (although he later rejoined the company). Obviously, if the person disclosing wrongdoing is under pressure – whether deliberate or latent, not only are few likely to come forward, but also the purpose of the Act is lost.

Example of policy 1.

[As stated in its general compliance policy] [the organisation] operates within the country’s laws and regulations and expects all employees to co-operate in this by adhering to all policies and procedures.

2.

Every employee is expected to advise [specify a named person or position] should (s)he become aware of any matter or act which seems not to be in accord with the general aim set out in 1 above. Specifically, all employees are expected to make such notification immediately they become aware of a)

the breaking or proposed breaking of any law or regulation by an employee of the organisation

b)

the breaking of any of the organisation’s procedures, rules or policies

c)

any wrongdoing

d)

any matter which seems likely to harm an employee, customer, member of the public, the environment etc.

e)

any possibility or suggestion that one of the items set out in (a) to (d) has occurred and is being covered up


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3.

Assuming these requirements have been met (i.e. the initial report is to [specify] rather than to an outside body), the [organisation] undertakes to hold the employee harmless and to protect them from any personal claims and from any victimisation, harassment or bullying occasioned as a result of their acts. The aim is that the career of any notifying employee should not in any way be harmed or hindered as a result of their act (whether the item reported proves to be true or not, provided the reporting was carried out in good faith).

4.

The action of any employee against another employee who has made disclosure under this policy and as a result of such disclosure, whether they are affected by the disclosure or not, will be regarded as gross misconduct and subject to summary dismissal.

5.

Anyone, including an elected safety representative, who becomes aware of a hazard or dangerous occurrence is expressly required to notify [specify] before making any other report – e.g. to an outside body – not least so that immediate action can be taken if necessary to remove the hazard.

6.

Failure to notify when reasonably aware or certain of an occurrence covered by 2 above is regarded by the organisation as misconduct since, effectively, it makes the employee an accessory. Failure to notify internally before notifying externally is usually regarded as misconduct. Only if an employee has reasonable grounds for believing that no notice will be taken of the report internally may contact be made to an outside body in the first instance.

Note: If the organisation has a compliance officer, then it may be logical to insert the name of that person in such a clause. However, in safety reporting it may be important that a person is designated for this purpose on each site, so that urgent investigation and rectification can be implemented.

Case study Antonio Fernandes was the Finance Controller of Netcom consultants. Into his office one day walked his managing director with a petty cash slip but no receipts. The slip was for £216,000 and Fernandes at first refused to issue a cheque stating that the expenses could not be shown to be properly incurred in the execution of the MD’s duties. The MD insisted and Fernandes, under duress, issued a cheque. The MD returned some time later with another petty cash slip, this time for £55,000 but again without receipts. Fernandes refused to issue a cheque and they consulted


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the American owners of the company who told him to ‘keep his butt clean and pay it’. When he refused they suggested he resign and, when he refused, they dismissed him. He was awarded £293,000 compensation.

Compensation for unfair dismissal for whistleblowing is exempt from the normal limit. Whilst this could be said to be deliberate in order to encourage people to report breaches, a more mundane reason (the probability of greater difficulty finding another job having previously whistleblown) is also pertinent. Since the PID Act came into force there have been approaching 2,000 cases, and around £16,000,000 has been paid in compensation. The average payment is around £100,000 and the highest amount awarded was £805,000.

C. Human Rights As noted in Chapter One the three separate commissions that have existed for many years to try to eradicate discrimination are being merged to form the Commission for Equality and Human Rights. Whilst the term ‘equality’ speaks for itself, the inclusion of ‘Human Rights’ in the title reflects the fact that not only does discrimination offend human rights, but also that the prohibition of a denial of human rights is now reflected in UK law.

European Convention of Human Rights (ECHR) In the aftermath of World War II, the countries that had suffered under occupation collectively decided to commit themselves to trying to avoid any repetition of Hitler’s ‘final solution’ – the persecution and collective murder of Jews. This agreement was the European Convention of Human Rights (ECHR). Such solidarity of purpose predated by two years the start of the European Community but, it could be argued, the same motive (or at least trying to prevent yet another European war) was at least part of the reason for the Treaty of Rome in 1950, out of which grew the EC, which then became the European Union. The UK was not a signatory to the ECHR. There are a number of reasons for this – perhaps not least the fact that unlike Portugal, Spain, France, Italy, Benelux, Germany, Greece and the whole of the eastern European bloc, the UK had a history of trial by jury, protection of the individual, recognition of trades unions, as well as a complete absence of invasion and subjugation (at least since 1066).


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In the 50 years that the ECHR has been in effect, only a very tiny proportion (under 5%) of the claims brought under its auspices have been successful. The ECHR requires that there be 1.

Right to respect for private and family life

2.

Freedom of thought, conscience and religion

3.

Freedom of expression

4.

Freedom of assembly and association and

5.

Prohibition of discrimination on any ground including sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

The UK commits One of the first acts of the Labour Government of 1997 was to decide that the UK should adopt the principles of the ECHR, even though to a very large extent the requirements of the ECHR were already acknowledged either in statute or custom and practice in the UK. Hence, in 1998, the Government passed the Human Rights Act (HRA), which came into effect in October 2000. Although this Act has received a great deal of attention, it is not always realised that it does not have complete aegis over all employers. Only those employed by ‘emanations of the State’ (that is employees of central and local government, fire, police, national health service, State schools, libraries, government research establishments, the Armed Forces, the Courts and any other organisations that are directly funded by the State) are protected directly by the Act. The HRA requires 1.

Government to confirm when introducing legislation that the laws are ECHR compliant

2.

Public authorities (that is ‘emanations of the State’) to act in accordance with ECHR principles

3.

Courts (including Tribunals) to interpret legislation in accordance with ECHR principles.

General application Employment Tribunals are Courts and are thus included in the reference to Courts. During the hearing of a claim, which could of course have been brought by an employee (or ex-employee) of a private employer, a Tribunal is required to bear


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in mind the ECHR principles – particularly when considering decisions etc and examining the requirements of legislation. Inevitably this will have an effect in employment, giving everyone the right to be accorded respect for their private life and personal matters. Relatively few Tribunals have found opportunity – or need – to comment about a breach of human rights.

Case study During a claim for unfair dismissal brought by an ex-employee of a company it was disclosed that the decision to dismiss was made by the Managing Director late one Saturday night. Since he wanted the employee dismissed before she could attend the office the following Monday morning, he telephoned her manager and insisted the manager come into the office (to discuss the arrangements for the employee’s dismissal) at 1.30 a.m. Sunday morning. Since the manager normally worked Monday to Friday 9-5.30, the Tribunal felt that this was a denial of his human rights and commented as such in the decision (although it had no effect on the decision or the compensation awarded to the ex-employee).

Although the thrust of the Act is still not effective against private employers, the more that any protection granted by it is available to employees of ‘emanations of the State’, the more its protections may percolate into the private arena.


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Appendices 1. Data sheet – annually reviewed figures ......................................108 2. Electronic Communications policy..............................................109 3. Examples of flexible working .......................................................113 4. Draft homeworking policy............................................................114 5. Cases ...............................................................................................116

Appendices

1. Data sheet – annually reviewed figures In the following list the dates in brackets after the amounts indicate the last time the figures were reviewed. Such figures should be expected to review on the next anniversary. •

Unfair dismissal – maximum awards: basic £8,700, compensatory £58,400 (Feb 2006)

•

Additional award – £7,540 – £15,080 (26-52 weeks pay) (Feb 2006) (Used for failure to comply with an order for reinstatement etc.)

•

Maximum weeks pay ‘MWP‘ (used for redundancy calculation, compensation for failing to deal properly with flexible working request) – £290 (Feb 2006)

•

Guarantee pay (5 days each quarter) – £18.90 per day (Feb 2006)

•

Statutory sick pay – £70.05 per week (April 2006)

•

Statutory Paternity Pay, Statutory Adoption Pay – £108.85 p.w. or 90% of wage, whichever is lower (April 2006)

•

Statutory Maternity Pay for women earning above Lower Earnings Level (£84 p.w. – April 2006) and with 40 weeks service before Expected Week of Childbirth) – 90% of pay for six weeks and lower of 90% of pay or £108.85 p.w. for 20 weeks (April 2006)

•

‘Small employer’ limit for reclamation of SSP, SMP,SPP,SAP – (total of NI contributions in previous years) less than £45,000 (April 2004). (Concession is to be phased out by 2008.)

•

Jury service allowances: –

Days 1-10 Up to 4 hours: £28.48 per session. Over 4 hours: £56. 96 per day

–

Days 11-200 Up to 4 hrs: £56.96 per session. Over 4 hours: £113.93 per day

–

Days 201+ Up to 4 hrs: £100 per session. Over 4 hrs: £200.00 per day


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•

National Minimum Wage: –

Full rate £5.05 p.h (Oct 05 – £5.35 Oct 06)

–

Reduced rate £4.25 p.h. (Oct 04 – £4.45 Oct 06)

–

Youth rate £3 p.h. (Oct 04 – £3.30 Oct 06)

•

Graduate loan repayment threshold: £15,000 (April 2005)

•

Inheritance Tax threshold: £285,000 (April 2006) (£300,000 April 2007, £312,000 April 2008, £325,000 April 2009)

2. Electronic Communications policy The rapid development of e-mail and access to the Internet has led to problems regarding the sourcing and use of inappropriate material in the workplace. Email allows the instant transmission of a message by a non-typist without the previous time gap when composing written work which allowed for second thoughts. This can lead to an ‘over casual’ approach to the generation and framing of such messages. To many users an e-mail message equates to casual conversation but it is written and permanent – unlike spoken words. The EU carried out a survey recently and found that, on average, employees use their employer’s access to the Internet for an hour each day for private purposes – often to source pornography (70% of pornography being downloaded from the Internet during normal office working hours). As a further development, in a number of instances such material has then been circulated via the employer’s intranet (or in hard copy format), leading to claims of harassment and discrimination and/or failure of the employer to provide a safe place of work for them from the recipients. Such data and/or images are increasingly being used for harassment, discrimination and bullying, which could mean potential liability for the company as well as those generating such illegal acts. A recent survey indicated that 50% of those questioned had received obscene, sexist or otherwise inappropriate e-mails within the previous year. This situation is becoming so serious that employers must consider implementing a policy/ procedure outlawing abusive practices.

Draft Electronic transmissions policy 1.

E-mail should be used primarily to distribute/update information, confirm arrangements, confirm meetings etc. [It may not be used to distribute personal information.]


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2.

As an exception the system can be used to leave messages where the recipient is unavailable and the message awaits their return.

3.

E-mail should not be used to substitute for face to face or telephone conversations, since messages they convey lose much that is conveyed by body language. The medium is comparatively ineffective in this area. Research indicates that people reach the best decisions when they occupy adjacent physical space – using e-mail blanks off this advantage.

4.

Unless video and audio links are available, electronic communications should not be used for meetings or managerial control. (See 3 above)

5.

Items for dissemination via e-mail should be checked after drafting for clarity, accuracy of message and absence of abusive, emotive etc. words. The language used must be consistent with conventional standards, decency and respect for others, and good manners.

6.

Commenting on or about another person or body should be avoided but, if it is unavoidable (i.e. it is a necessary part of the information under consideration), should only be based on – and backed up by – facts (failure to have available a factual basis for such items could lead to a libel action). On no account should the employer’s access to the Internet be used to create generate abuse and/or libellous comments about the employer or other employees.

7.

On no account should the employer’s internal or external systems be used for vindictive, harassing, discriminatory or abusive comment or criticism of anyone, whether this is the target, another employee or any third party. Further, they must not be used for electronic stalking.

8.

A person receiving an item which they feel should have been prohibited by items 5 or 7 above should notify [name].

9.

Any person proved to have deliberately sent an item prohibited by item 5 or 7 above and/or item 14 below may be deemed guilty of gross misconduct and can be dealt with under the disciplinary procedure accordingly. Some of these offences also breach criminal law and can be made subject to sanctions including imprisonment.

10. All messages etc. should be clear and unambiguous and coded from 5 star to 0 star in order of priority (in accordance with the priorities of the recipient rather than those of the sender). Since clarity is preferable to brevity, jargon should be avoided unless the sender is absolutely certain that the recipients will understand it. 11. An e-mail message should be treated as if it were a hard copy letter and drafted and checked in the same way. In law an e-mail message


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has the same value as a hard copy letter. All e-mails can be recaptured in hard copy. 12. No e-mail message or response to an e-mail message should ever be sent in haste, anger or hostility. Ideally, a time for consideration should elapse between drafting and sending a reply. 13. No e-mail or other communication containing a virus or equivalent damaging content may be sent internally or externally. No electronic device capable of receiving e-mails or other communication from external sources may be used without being virus protected. 14. Access to the Internet is for the purposes of the employer’s business only, and such access must not be used for an individual’s requirements whether personal or on behalf of another. Failure to comply with this will be regarded as gross misconduct. [Alternatively: Access to the Internet for personal purposes is permitted only (for example, i.e. outside working hours) before 8.30 a.m. and after 5.30 p.m. On no account must any data or information so derived be used in or passed round the organisation in any way whatsoever without the written permission of [name].] 15. All communications including e-mail, faxes, telephone conversations etc., generated and/or received by employees, may be monitored by the company as is allowed under the contract of employment. Where private business is to be transacted employees can use the payphones provided. These phones are not monitored. 16. Personal mobile phones may not be used at the workplace and must be switched off during working hours. They can be switched on and used during recognised breaks provided this can be effected without causing any dislocation to the computers and other property and procedures of the company. If incoming urgent messages are required to be made other than at times of breaks, these should be left with the switchboard operator who will pass messages to employees. Where the matter is urgent an employee may use their own phone or a payphone to return the call, subject to gaining permission from their supervisor or manager to leave their place of work. 17. On no account may any information of the organisation, stored in any electronic data or other system (including purely, for example, computer aided design work) be copied or removed (including by electronic transfer) from the premises of the organisation without prior written permission of [name].


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18. The company websites are the sole property of the company and any unauthorised interference with, or copying and variation of such websites is not only gross misconduct but also can generate an action for damages. 19. On no account must an employee in receipt of a personal incoming e-mail distribute such material internally or externally without specific prior permission from (designated person). 20. For security reasons and to prevent fraud, covert monitoring may take place both on an off company premises. 21. Persons undertaking job-sharing will be allowed access to their partner’s electronic and other transmissions 22. If using the ‘out of office’ facility, no personal details (address, phone number, date of return) should be stated to prevent hackers obtaining such information from this source. 23. On each and every occasion before using the system employees will be required to type the three letters ‘Y E S’ in answer to a screen prompt ‘Are you aware of the [Organisation’s] Electronic Transmissions policy and that breach of the requirements is gross misconduct?’, before they can proceed. 24. Breach of this policy is gross misconduct.

Notes: 1.

Advising users that e-mails can be recovered in hard copy form for up to two years and can be made subject to legal disclosure rules may encourage users to think more carefully of their message content.

2.

There is evidence that hackers finding a message referred to in Clause 22, and knowing the employee is away for some time, find their private address and then burgle the employee’s house.

3.

If the employer wishes to be able to monitor all messages (e.g. telephonic, electronic and hard copy), a suitable clause must be inserted in the Contract of Employment so that the employee effectively ‘grants permission’ for such monitoring.


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Example of eavesdropping clause 1.

The employer provides electronic transmission systems for the purposes of its business during normal working hours only. Employees will be expected to operate such systems from time to time and it is a basic rule that in working hours such access must be only for the employer’s business purposes.

2.

Monitoring devices are installed and e-mails, as well as faxes, letters and telephone calls may be checked to ensure that only the employer’s business is being transacted and that this is being conducted in an acceptable way using reasonable language, etc. A payphone is provided as [specify] and communications via this phone are not monitored.

3.

It is a contractual requirement that employees agree to such monitoring. As a concession (which the employer reserves the right to withdraw at any time and without notice) employees will be allowed access to the Internet for personal purposes outside normal working hours, providing this is at no expense to the employer, that no embarrassment or damage would be caused to the employer should details of the material accessed be widely known, and that no material thereby derived is disseminated internally or to any shareholder, customer, agent or supplier in any way whatsoever without prior written approval from [name].

3. Examples of flexible working •

Flexi-time: employees are able to vary their entry and exit hours provided certain ’core time’ in the day is worked. Some employers vary this so that employees can ’bank’ time additional to normal total hours in a week and take time off in lieu (TOIL) later.

•

Staggered hours: Hours, possibly because of travel difficulties, are allowed to vary. Again this is usually tied to the working of certain ’core hours’ each day.

•

Part-time and/or job sharing: where there can be benefits of flexibility to both employees and employer (sometimes job-sharers can cover the ’other shift’ in emergency as well as their own).


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•

Term-time working: hours are geared to those with children at school, allowing time off for much of the normal school vacations.

•

Voluntary time working: the employee volunteers to reduce the number of hours worked.

•

Annualised hours: potentially useful where there is a variation in demand for the product or service provided.

•

Compressed hours: used where a few long shifts (e.g. 4 x 10 hours shifts) can be substituted for a normal 5 day 8 hour worked week. Output may need to be measured since working longer shifts regularly may lead to reduced output per hour or efficiency generally.

•

Shift working and shift swapping. This usually entails paying a shift premium since almost certainly some of the time will be ’unsocial’ and thus commanding a higher rate. Allowing those working shifts to swap time informally is often highly valued.

•

Self-rostering: an employee sets their own times of work. This can work effectively, particularly where there is a defined project to be completed within a set timescale.

•

Sabbaticals, leave of absence, employment breaks etc: can provide motivation to employees. The right to take these is usually restricted to longer service employees and thus can usually be allowed as a form of loyalty bonus.

4. Draft homeworking policy 1.

The [organisation] is committed to the growth of homeworking where this is both feasible and welcomed by those concerned.

2.

Those wishing to be considered for this type of work should register this interest with [specify].

3.

Those undertaking homeworking need to be able to make a room in their house (the homebase) available for use as an office/workshop for the [organisation] on a dedicated basis. To compensate for this use the [organisation] will make a payment of [sum].

4.

In the event that a homebase can only be made available on a dedicated basis after some works and/or expenditure, the [organisation] will consider making an advance recoverable by agreed deductions from subsequent payments to fund these works.


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5.

The employee will be required to commit to working a set number of hours per [day/week/month] for an agreed sum, although the hours can be varied to suit the requirements of home and office. However, the employee must be available for core hours which are [specify]

6.

The homeworker will be required to sign a homeworking agreement which will cover the items set out in this policy and any further items specific to the individual.

7.

To set up the home base the [organisation] will provide the following equipment [specify] and pay for the cost of installing, renting and using dedicated telephone line(s). The employee is required to add the value of the equipment [specify] to their home contents insurance policy, notifying the insurers that their house is being used for restricted business purposes. The insurers should be required to note the interest of the [organisation] as owner of the equipment on the policy. Any additional costs incurred in insuring the equipment can be re-charged to the organisation on the first timesheet. This should be accompanied by evidence that the value of the items has been added to the policy and the insurers are aware of the business use.

8.

The homeworker will be required to agree a schedule of work from time to time and to report on the work done. Such reports should accompany timesheets which should be submitted on a weekly basis. These reports will include details of all [calls made] and a resume of the response.

9.

The [organisation] reserves the right to visit the premises from time to time and to assess the performance of the homeworker.

10. Other than necessary changes to hours, place of work, etc., the provisions of the employee’s contract of employment will continue in force until termination in accordance with that contract. 11. The homeworker will be required to report personally to the organisation premises on a [weekly/monthly] basis. Costs of such travel and time can be claimed on the next subsequent timesheet. 12. If work/material/goods are given to the homeworker for transport to the homebase (or elsewhere), they will be provided with a letter of authority to ensure Security allow them to pass with such goods. 13. The homebase will be subject to the [organisation’s] Safety Policy and Procedure, and the homeworker will be expected to undertake such works (at the employer’s expense) to ensure the premises accord with the requirement of such Policy and Procedure. Visual display and


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computer workstations will be checked initially [and at six monthly intervals] for ease of use and compliance with legal requirements. Any alterations found to be necessary will be carried out by and at the cost of the [organisation]. 14. On termination of the homeworking arrangement, the homeworker will return all equipment and material provided by the [organisation] within seven days of the termination. The [organisation] will deal with the cancellation of any telephone line(s). Should return of the equipment not be effected within the above period, the homeworker expressly grants to the employer by this agreement a right of access (subject to three hours notice between 9.00 a.m. and 6.30 p.m. Monday to Friday) to the homebase, in order to recover such equipment. Since the employee’s home becomes a workplace, it may be necessary to extend Employers Liability insurance cover to homeworkers or outworkers and the [organisation’s] insurers should be contacted for guidance.

5. Cases For readers wishing to refer to decisions made in cases referred to in the chapters of this report, the reference date is shown in brackets after the names of the cases. •

Archibald v Fife Council (HoL 1.7.04)

•

Banks v Ablex Ltd (2005 All ER(D) 366)

•

Bhalla v M Firkin (IT 1301024/96)

•

Booth v United States of America (1999 IRLR 16)

•

British Airways v Starmer (EAT 21.7.05 0306/05)

•

Bridges and ors v Industrial Rubber Plc

•

Brocklebank v Silveira (UKEAT/0571/05/MAA)

•

Buck v Bernard Mathews Foods Ltd (ET 5400152/01)

•

Bunnings v GT Bunning & Sons Ltd (2005 EWCA Civ 104)

•

Carmichael v National Power (1998 IRLR 301)

•

Caspersz v Ministry of Defence (EAT/0599/05/LA)

•

Coote v Granada Hospitality Ltd (22.9.98 C-185/97 ECJ)

•

Cornwall CC v Prater (EAT 262972 24.2.06)


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•

Cox v The Post Office (23.10.97 COIT 1301162/97)

•

Dacas v Brook Street Bureau (UK) Ltd (2004 IRLR 358)

•

Davidson v Motorola (2000 IDS 670 EAT)

•

Day v T Pickles Farms Ltd (1999 IRLR 217)

•

Department of Work and Pensions v Hall (EAT 0012/05)

•

Devon Fire and Rescue Service v Owers (ET1700941/05)

•

De Souza v Automobile Association (1986 ICR 514)

•

Dillon v Rentokil Iniitial UK Ltd (EAT 2700899/01)

•

Dinar v Burger King Ltd (ET 15555/95)

•

Driskel v Peninsula Business Services Ltd and Ors (2000 !RLR 151 EAT)

•

Enterprise Glass Co Ltd v Miles (1990 EAT 538/89)

•

Hardman v Mallon (t/a Orchard Lodge Nursing Home) (2002 IRLR 516 EAT)

•

Haringey Council v Al-Azzawi (2002 IDS 703)

•

Herbert Smith v Langton (Times July 05)

•

Khan v G & J Spencer Group plc (t/a NIC Hygiene) Ltd (ET 1803250/04)

•

Kutz-Bauer v Freie und Hansestadt Hamburg (2003 IRLR 368)

•

Majrowski v Guy’s & St Thomas’s NHS Trust (Times 21.3.05)

•

Mandla & anor v Lee (1983, ICR 385 HL)

•

Matthews v Kent and Medway Towns Fire Authority (HoL 1. 3.2006)

•

Metropolitan Police Service v Shoebridge (8.6.04 EAT 234/03)

•

Ministry of Defence v Williams (EAT 8.10.03 IRLR 42)

•

Nazir v Yorkshire Envelope Co (Independent 24.7.98)

•

Panesar v Nestle Co Ltd (1980 IRLR 60 EAT)

•

Pratt v Walsall Health Authority (ET 36145/86)

•

Quinlan v B & Q plc (EAT 1386/97)

•

Ramsay v Walkers Snack Foods (EAT 0601/03)

•

Ratanshi v British Rail Engineering Ltd (ET 34916/84)

•

R v Wakefield and Lancashire (Court of Appeal 6.11.00)

•

Rhys-Harper v Relaxion Group (2003 IRLR 464)


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•

Richards v DWP (Times 28. 4. 06)

•

Richardson v Evans & Chief Constable of West Midlands Police (IT 67433/95)

•

Rideout v TC Group (1998 IRLR 628)

•

Riley v Base (t/a GLI Heating) (9.9. 05 EAT/0092/05/ZT)

•

Sidhu v Aerospace Composite Technology Ltd (2000 IRLR 602 CA)

•

Singh v Rowntree Mackintosh (1979 IRLR 199 EAT)

•

Smith v Carpets International UK plc (11.9.97 1800507/97)

•

Steinicke v Bundesanstalt fur Arbeit (ECJ C-77/02 11/9/03)

•

Stubbs v Chief Constable of Lincolnshire (1999 IRLR 81)

•

Tarling v Wisdom Toothbrushes Ltd (27.5.97 COIT 3400/15)

•

Visa International Service Association v Paul (EAT 2004 IRLR 42)

•

Weston v Merrill Lynch (Times, 2.3.06)

•

Williams-Drabble v Pathway Care Solutions (ET 2601718/04)

•

X v Secretary of State for Education and Skills (2304973 – 7/04)

•

Yeboah v London Borough of Hackney (Stratford ET 1998, CoA 1999)


118

Other specially commissioned reports BUSINESS AND COMMERCIAL LAW

The commercial exploitation of intellectual property rights by licensing

The Competition Act 1998: practical advice and guidance

CHARLES DESFORGES

SUSAN SINGLETON

£125.00

£149.00

1 85418 285 4 • 2001

1 85418 205 6 • 2001

Expert advice and techniques for the identification and successful exploitation of key opportunities.

Failure to operate within UK and EU competition rules can lead to heavy fines of up to 10 per cent of a business’s total UK turnover.

This report will show you: •

how to identify and secure profitable opportunities

•

strategies and techniques for negotiating the best agreement

•

the techniques of successfully managing a license operation.

Insights into successfully managing the in-house legal function BARRY O’MEARA

£65.00

1 85418 174 2 • 2000

Damages and other remedies for breach of commercial contracts ROBERT RIBEIRO

£125.00

Negotiating the fault line between private practice and in-house employment can be tricky, as the scope for conflicts of interest is greatly increased. Insights into successfully managing the In-house legal function discusses and suggests ways of dealing with these and other issues.

1 85418 226 X • 2002 This valuable new report sets out a systematic approach for assessing the remedies available for various types of breach of contract, what the remedies mean in terms of compensation and how the compensation is calculated.

Commercial contracts – drafting techniques and precedents ROBERT RIBEIRO

£125.00

1 85418 210 2 • 2002 The Report will: •

Improve your commercial awareness and planning skills

For full details of any title, and to view sample extracts please visit: www.thorogoodpublishing.co.uk You can place an order in four ways:

•

Enhance your legal foresight and vision

1 Email: [email protected]

•

Help you appreciate the relevance of rules and guidelines set out by the courts

2 Telephone: +44 (0)20 7749 4748

Ensure you achieve your or your client’s commercial objectives

4 Post: Thorogood, 10-12 Rivington Street, London EC2A 3DU, UK

•

t +44 (0)20 7749 4748

3 Fax: +44 (0)20 7729 6110

e [email protected]

w w w w. t h o r o g o o d p u b l i s h i n g . c o . u k

The legal protection of databases SIMON CHALTON

Email – legal issues £145.00

SUSAN SINGLETON

£95.00

1 85418 245 5 • 2001

1 85418 215 3 • 2001

Inventions can be patented, knowledge can be protected, but what of information itself?

What are the chances of either you or your employees breaking the law?

This valuable report examines the current EU [and so EEA] law on the legal protection of databases, including the sui generis right established when the European Union adopted its Directive 96/9/EC in 1996.

The report explains clearly:

Litigation costs MICHAEL BACON

•

How to establish a sensible policy and whether or not you are entitled to insist on it as binding

•

The degree to which you may lawfully monitor your employees’ e-mail and Internet use

•

The implications of the Regulation of Investigatory Powers Act 2000 and the Electronic Communications Act 2000

•

How the Data Protection Act 1998 affects the degree to which you can monitor your staff

•

What you need to watch for in the Human Rights Act 1998

•

TUC guidelines

•

Example of an e-mail and Internet policy document.

£95.00

1 85418 241 2 • 2001 The rules and regulations are complex – but can be turned to advantage. The astute practitioner will understand the importance and relevance of costs to the litigation process and will wish to learn how to turn the large number of rules to maximum advantage.

International commercial agreements REBECCA ATTREE

£175

1 85418 286 2 • 2002 A major new report on recent changes to the law and their commercial implications and possibilities. The report explains the principles and techniques of successful international negotiation and provides a valuable insight into the commercial points to be considered as a result of the laws relating to: pre-contract, private international law, resolving disputes (including alternative methods, such as mediation), competition law, drafting common clauses and contracting electronically. It also examines in more detail certain specific international commercial agreements, namely agency and distribution and licensing. For full details of any title, and to view sample extracts please visit: www.thorogoodpublishing.co.uk You can place an order in four ways: 1 Email: [email protected] 2 Telephone: +44 (0)20 7749 4748 3 Fax: +44 (0)20 7729 6110 4 Post: Thorogood, 10-12 Rivington Street, London EC2A 3DU, UK

S e e f u l l d e t a i l s o f a l l T h o r o g o o d t i t l e s o n w w w. t h o r o g o o d p u b l i s h i n g . c o . u k

HR AND EMPLOYMENT LAW

Employee sickness and fitness for work – successfully dealing with the legal system GILLIAN HOWARD

£95.00

1 85418 281 1 • 2002 Many executives see Employment Law as an obstacle course or, even worse, an opponent – but it can contribute positively to keeping employees fit and productive. This specially commissioned report will show you how to get the best out of your employees, from recruitment to retirement, while protecting yourself and your firm to the full.

How to turn your HR strategy into reality TONY GRUNDY

£129.00

1 85418 183 1 • 1999 A practical guide to developing and implementing an effective HR strategy.

Internal communications JAMES FARRANT

£125

1 85418 149 1 • July 2003 How to improve your organisation’s internal communications – and performance as a result.

Data protection law for employers SUSAN SINGLETON

£125

There is growing evidence that the organisations that ‘get it right’ reap dividends in corporate energy and enhanced performance.

1 85418 283 8 • May 2003 The new four-part Code of Practice under the Data Protection Act 1998 on employment and data protection makes places a further burden of responsibility on employers and their advisers. The Data protection Act also applies to manual data, not just computer data, and a new tough enforcement policy was announced in October 2002.

MARK THOMAS

£69.00

1 85418 270 6 • 2001 Practical advice on how to attract and keep the best.

Successfully defending employment tribunal cases

1 85418 008 8 • 1997

This report will help you to understand the key practical and legal issues, achieve consensus and involvement at all levels, understand and implement TUPE regulations and identify the documentation that needs to be drafted or reviewed.

New ways of working STEPHEN JUPP

DENNIS HUNT

£95.00

Why do so many mergers and acquisitions end in tears and reduced shareholder value?

Successful graduate recruitment JEAN BRADING

Mergers and acquisitions – confronting the organisation and people issues

£99.00

£95 1 85418 169 6 • 2000

1 85418 267 6 • 2003 Fully up to date with all the Employment Act 2002 changes. 165,000 claims were made last year and the numbers are rising. What will you do when one comes your way?

t +44 (0)20 7749 4748

New ways of working examines the nature of the work done in an organisation and seeks to optimise the working practices and the whole context in which the work takes place.

e [email protected]


Knowledge management SUE BRELADE, CHRISTOPHER HARMAN

changes to internal disciplinary and grievance procedures

•

significant changes to unfair dismissal legislation

•

new rights for those employed on fixed-term contracts

•

the introduction of new rights for learning representatives from an employer’s trade union

£95.00

1 85418 230 7 • 2001 Managing knowledge in companies is nothing new. However, the development of a separate discipline called ‘knowledge management’ is new – the introduction of recognised techniques and approaches for effectively managing the knowledge resources of an organisation. This report will provide you with these techniques.

Reviewing and changing contracts of employment ANNELISE PHILLIPS, TOM PLAYER and PAULA ROME

This specially commissioned new report examines each of the key developments where the Act changes existing provisions or introduces new rights. Each chapter deals with a discreet area.

Email – legal issues £125

SUSAN SINGLETON

£95.00

1 85418 215 3 • 2001

1 85418 296 X • 2003 The Employment Act 2002 has raised the stakes. Imperfect understanding of the law and poor drafting will now be very costly.

360,000 email messages are sent in the UK every second (The Guardian). What are the chances of either you or your employees breaking the law? The report explains clearly:

This new report will: •

Ensure that you have a total grip on what should be in a contract and what should not

•

Explain step by step how to achieve changes in the contract of employment without causing problems

•

Enable you to protect clients’ sensitive business information

•

Enhance your understanding of potential conflict areas and your ability to manage disputes effectively.

Applying the Employment Act 2002 – crucial developments for employers and employees AUDREY WILLIAMS

•

•

How to establish a sensible policy and whether or not you are entitled to insist on it as binding

•

The degree to which you may lawfully monitor your employees’ e-mail and Internet use

•

The implications of the Regulation of Investigatory Powers Act 2000 and the Electronic Communications Act 2000

•

How the Data Protection Act 1998 affects the degree to which you can monitor your staff

•

What you need to watch for in the Human Rights Act 1998

•

TUC guidelines

•

Example of an e-mail and Internet policy document.

£125

1 85418 253 6 • May 2003 The Act represents a major shift in the commercial environment, with far-reaching changes for employers and employees. The majority of the new rights under the family friendly section take effect from April 2003 with most of the other provisions later in the year. The consequences of getting it wrong, for both employer and employee, will be considerable – financial and otherwise. The Act affects nearly every aspect of the work place, including: •

flexible working

•

family rights (adoption, paternity and improved maternity leave)

For full details of any title, and to view sample extracts please visit: www.thorogoodpublishing.co.uk You can place an order in four ways: 1 Email: [email protected] 2 Telephone: +44 (0)20 7749 4748 3 Fax: +44 (0)20 7729 6110 4 Post: Thorogood, 10-12 Rivington Street, London EC2A 3DU, UK


SALES, MARKETING AND PR

Implementing an integrated marketing communications strategy

Tendering and negotiating for MoD contracts

NORMAN HART

TIM BOYCE

£99.00

£125.00

1 85418 120 3 • 1999

1 85418 276 5 • 2002

Just what is meant by marketing communications, or ‘marcom’? How does it fit in with other corporate functions, and in particular how does it relate to business and marketing objectives?

This specially commissioned report aims to draw out the main principles, processes and procedures involved in tendering and negotiating MoD contracts.

Defending your reputation Strategic customer planning ALAN MELKMAN AND PROFESSOR KEN SIMMONDS

SIMON TAYLOR £95.00

1 85418 255 2 • 2001 This is very much a ‘how to’ Report. After reading those parts that are relevant to your business, you will be able to compile a plan that will work within your particular organisation for you, a powerful customer plan that you can implement immediately. Charts, checklists and diagrams throughout.

1 85418 251 • 2001 ‘Buildings can be rebuilt, IT systems replaced. People can be recruited, but a reputation lost can never be regained…’ ‘The media will publish a story – you may as well ensure it is your story’ Simon Taylor ‘News is whatever someone, somewhere, does not want published’ William Randoplh Hearst When a major crisis does suddenly break, how ready will you be to defend your reputation?

Selling skills for professionals KIM TASSO

£65.00

1 85418 179 3 • 2000 Many professionals still feel awkward about really selling their professional services. They are not usually trained in selling. This is a much-needed report which addresses the unique concerns of professionals who wish to sell their services successfully and to feel comfortable doing so. ‘Comprehensive, well written and very readable… this is a super book, go and buy it as it is well worth the money’ Professional Marketing International

Insights into understanding the financial media – an insider’s view SIMON SCOTT

£99.00

1 85418 083 5 • 1998 This practical briefing will help you understand the way the financial print and broadcast media works in the UK.

European lobbying guide BRYAN CASSIDY

£129.00

1 85418 144 0 • 2000

Corporate community investment CHRIS GENASI

£95.00

£75.00

Understand how the EU works and how to get your message across effectively to the right people.

1 85418 192 0 • 1999 Supporting good causes is big business – and good business. Corporate community investment (CCI) is the general term for companies’ support of good causes, and is a very fast growing area of PR and marketing.

t +44 (0)20 7749 4748

e [email protected]


Lobbying and the media: working with politicians and journalists

Managing corporate reputation – the new currency

MICHAEL BURRELL

SUSAN CROFT and JOHN DALTON

£95.00

1 85418 240 4 • 2001

1 85418 272 2 • June 2003

Lobbying is an art form rather than a science, so there is inevitably an element of judgement in what line to take. This expert report explains the knowledge and techniques required.

ENRON, WORLDCOM… who next?

Strategic planning in public relations KIERAN KNIGHTS

£69.00

At a time when trust in corporations has plumbed new depths, knowing how to manage corporate reputation professionally and effectively has never been more crucial.

Surviving a corporate crisis – 100 things you need to know

1 85418 225 0 • 2001

PAUL BATCHELOR

Tips and techniques to aid you in a new approach to campaign planning.

1 85418 208 0 • April 2003

Strategic planning is a fresh approach to PR. An approach that is fact-based and scientific, clearly presenting the arguments for a campaign proposal backed with evidence.

£125

£125

Seven out of ten organisations that experience a corporate crisis go out of business within 18 months. This very timely report not only covers remedial action after the event but offers expert advice on preparing every department and every key player of the organisation so that, should a crisis occur, damage of every kind is limited as far as possible.

FINANCE

Tax aspects of buying and selling companies MARTYN INGLES

Practical techniques for effective project investment appraisal £99.00

RALPH TIFFIN

£99.00

1 85418 189 0 • 2001

1 85418 099 1 • 1999

This report takes you through the buying and selling process from the tax angle. It uses straightforward case studies to highlight the issues and more important strategies that are likely to have a significant impact on the taxation position.

How to ensure you have a reliable system in place. Spending money on projects automatically necessitates an effective appraisal system – a way of deciding whether the correct decisions on investment have been made.

Tax planning opportunities for family businesses in the new regime CHRISTOPHER JONES

£49.00

1 85418 154 8 • 2000 Following recent legislative and case law changes, the whole area of tax planning for family businesses requires very careful and thorough attention in order to avoid the many pitfalls.


MANAGEMENT AND PERSONAL DEVELOPMENT

Strategy implementation through project management TONY GRUNDY

£95.00

1 85418 250 1 • 2001 The gap Far too few managers know how to apply project management techniques to their strategic planning. The result is often strategy that is poorly thought out and executed. The answer Strategic project management is a new and powerful process designed to manage complex projects by combining traditional business analysis with project management techniques.

For full details of any title, and to view sample extracts please visit: www.thorogoodpublishing.co.uk You can place an order in four ways: 1 Email: [email protected] 2 Telephone: +44 (0)20 7749 4748 3 Fax: +44 (0)20 7729 6110 4 Post: Thorogood, 10-12 Rivington Street, London EC2A 3DU, UK

t +44 (0)20 7749 4748

e [email protected]


Discrimination Law and Employment Issues (Thorogood Reports)

European Employment Law (Thorogood Reports)

Internal Communications (Thorogood Reports)

TUPE Regulations (Thorogood Reports)