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News Bytes

Index

Discriminatory recruitment practices

Over in Europe, the Advocate General has said that an employer's public statement of a discriminatory recruitment policy is direct discrimination contrary to the Race Directive.

In a Belgian newspaper a director of a door-fitting firm said that his firm would not recruit persons of Moroccan origin because customers did not trust them; he later denied that he said it.

When the Belgian equality body alleged discrimination, the court held that the director’s public statements were merely evidence of potential discrimination, not actual. On appeal, a number of questions were referred to the European Court of Justice (ECJ), including whether or not a public statement of a discriminatory recruitment policy constitutes direct discrimination contrary to the Race Directive.

The Advocate General, giving his opinion in advance of the ECJ decision, said that this type of discrimination is not excluded from the Race Directive. If it was excluded, employers would be able to differentiate very effectively between candidates on grounds of racial or ethnic origin simply by publicising the discriminatory character of their recruitment policy as overtly as possible.

The Advocate General also pointed out that there is nothing to stop member states from granting additional rights to anti-discrimination bodies to bring legal action when they are not acting on behalf of a specific complainant.

The opinion is not binding on the ECJ, which is expected to make a final ruling later this year.

More help for carers

The government is set to launch a major campaign to boost awareness among carers of the right to request flexible working.

The new move is part of a 10-year programme to give carers more help with employment, more frequent short breaks, and support for them to stay healthy.

The Carers Strategy is supported by £255m of new investment to implement some immediate steps. This includes £38m towards supporting carers to enter or re-enter the job market with more guidance for employers, and more accessible skills training for carers.

There are currently about 5.2 million carers in England and Wales, and nearly half of them provide more than 20 hours of care a week. Carers have had the right to request flexible working since April 2007.

The demand for care is expected to rise in the future, with the number of people aged over 85 – those most in need of care – rising by more than 50% in the next 10 years.

Statutory sick pay oversight to be rectified from October

The Government has published draft Regulations that amend the legislation on fixed-term employees to entitle agency workers on contracts of three months or less to statutory sick pay from 27 October 2008.

This is to address an oversight that had been revealed in a Court of Appeal case in 2007 in which the Court found that the exclusion of the right to statutory sick pay under a contract of service entered into for a specified period of not more than three months was not repealed by the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002.

The Government has decided to bring in the changes on 27 October to coincide with other changes to statutory sick pay that are linked to the introduction of the Employment and Support Allowance. Deferral to 6 April 2009 would also mean an undue delay in agency workers having the same access to statutory sick pay as other workers.

Central Arbitration Committee (CAC) Annual Report

In the year ending 31 March 2008, the CAC received 64 applications for trade union recognition. The majority of applications came from the manufacturing, transport and communication sectors. Just over half (53%) of these were for bargaining groups of fewer than 200 employees.

The CAC's remit expanded with the introduction of the Information and Consultation Regulations. Its work in this area over the past year included seven new complaints under the Regulations and four carried over from the previous year.

The Regulations were extended to employers with 50 or more employees from 6 April 2008, which may well have an impact on the workload of the CAC over the coming year.

Long hours to continue

The Government has announced that it has reached agreement in the Council of the European Union on the retention of UK workers' right to opt out of the maximum 48-hour working week.

Under the agreement, workers signing the opt-out will be subject to a maximum working week of 60 hours, unless social partners agree otherwise.

The agreement on the working time opt-out is in exchange for the UK Government's relaxation of its stance on agency workers. It had been opposed to the introduction of equal rights for agency workers. But it has now reached an agreement with the CBI and TUC on equal treatment in at least basic working and employment conditions for agency workers after 12 weeks' employment.

The proposals on working time and agency workers now go before the European Parliament.

Disability comparators – more clarification

Mr Malcolm suffers from schizophrenia. After stopping his medication for a short period, he sublet his council flat in the London Borough of Lewisham. This was prohibited under the terms of his tenancy agreement and, as a result, Mr Malcolm lost his security of tenure and an order for possession of the property was made. Mr Malcolm brought a disability discrimination claim, on the basis that the possession of his flat was discriminatory under the Disability Discrimination Act 1995, Part III. His case has now been considered by the House of Lords.

The House of Lords said that the reason for the treatment was the subletting of the flat. The London Borough of Lewisham had limited housing and could not allow tenancies to continue where the tenant was not living on the premises that he or she had been allocated. The reason for the treatment was therefore based purely on a housing management decision that had nothing to do with his disability.

The House of Lords went on to consider whether the appropriate comparator should be:

(a) a person without a disability who has sublet a Lewisham flat and gone to live elsewhere;

(b) a person who has sublet a Lewisham flat and not gone to live elsewhere; or

(c) some other comparator and, if so, whom.

The House of Lords found that the comparator should be (a), meaning that Mr Malcolm and the comparator would have been treated in the same way and that his claim must fail. The House of Lords also held that knowledge of the disability is necessary before discrimination can be found.

Statutory dispute resolution: the relationship between the grievance and the ET1

In a Scottish case, the employees brought equal pay claims in the employment tribunal. To bring their claims they first had to raise grievances under the statutory dispute resolution procedures, which they had.

However, the lists of equal pay comparators described in the grievances differed from those in the tribunal applications. The employer argued that, where a class of comparator had been included in the tribunal application but not in the statement of grievance, the tribunal should strike out that class of comparator. The employees argued that the comparators were examples, but the type of comparator had not changed. The substance of the grievances and the claims were the same. They also argued that the statutory grievance procedures did not require comparators to be identified.

The employment tribunal held that the employees’ grievances and tribunal applications made clear that their claims related to equal pay. The substance of the grievances and the claims was the same and the statutory grievance procedure had been complied with.

The EAT held that comparators should be specified in a grievance. Without this an employer could not be expected to appreciate that a relevant complaint was being made. The tribunal should have established that every complaint was the same as that in the grievances. The employees appealed.

The Court of Session agreed that what should be looked at was whether there was some correlation between the grievance being relied on and the claim submitted, although the language might be different and there might be earlier communications between the parties providing context for interpreting the grievance. Whether there was a relationship between the two was a question of fact for the tribunal to resolve. It was not clear how far the tribunal in this case had gone to reach its conclusion that the substance of the grievances and that of the claims were the same, therefore the case should be remitted back to the employment tribunal to consider whether the tribunal claims were essentially the same as the grievances.

And again......

Mrs Riley left her employment in August 2006. In January 2007 she wrote to First Choice stating that her letter, which concerned equal pay, was a step-one grievance letter. She asked First Choice to confirm whether use of the modified statutory grievance procedure was appropriate. First Choice agreed and requested more information about her equal pay comparators, stating that the process would be more meaningful if the information was supplied. The information was not forthcoming. In Mrs Riley’s her equal pay claim in the employment tribunal, the comparators were different from those set out in the step-one letter. It appears that Mrs Riley later changed her mind about the modified procedure being the appropriate procedure.

For the modified procedure to apply the parties must agree to its use in writing. Mrs Riley argued that First Choice's agreement was conditional on the receipt of further information and that a conditional agreement was not an actual agreement. The employment tribunal and EAT disagreed. The employer's letter included an unconditional acceptance that the modified procedure would apply.

Note:

Under the modified procedure the employee must identify in the step-one letter not only the grievance but also the basis for it.

Under the standard procedure the employee must inform the employer of the basis of the grievance before the meeting, but this does not need to be done in the step-one letter.

The issue then was whether Mrs Riley had met its requirements: although the basis of some claim had been identified in the step-one letter, it was not the same or a substantially similar claim as that lodged with the tribunal. Sufficient information to enable the employer to address the grievance had not been provided. Therefore Mrs Riley had failed to comply with the modified procedure and the tribunal had no jurisdiction to hear her equal pay claim.