Quarterly Bulletins

We publish a Quarterly Bulletin on employment matters for all our clients. Download it (pdf format) by Right-clicking this link and selecting "Save Target As..." or "Save Link As...".

If there are any items in our Bulletin which you'd like to discuss further with us, call EMMG on 01462 48 12 39 or click here to complete our Contact EMMG form

News Bytes

Index

Equal Pay: A blow to pay protection

The House of Lords has underlined the Court of Appeal decision that local authority arrangements to protect the pay of predominantly male groups following the Single Status job evaluation exercise are discriminatory and cannot be justified.

Two Councils carried out job evaluations that led to some posts, predominantly filled by men, being downgraded. They provided pay protection for a specified period for the staff whose posts were downgraded. Female staff brought equal pay claims on the grounds that pay protection did not equalise pay.

The Court of Appeal had held that, on these facts, an employment tribunal was entitled to find that the pay protection schemes did not amount either to a valid genuine material factor defence or to objective justification of unequal pay.

Collective consultation on redundancy proposals

In a case concerning the Finnish subsidiary of Fujitsu Siemens Computers, the European Court of Justice (ECJ) has ruled that the EU duty to consult over collective dismissals is triggered when strategic decisions lead the employer to contemplate or plan for redundancies.

The parent company had supported a proposal to close down the Finnish factory and the subsidiary employer began consultations with its employees. At the conclusion of the collective consultation process, the parent company decided to close the Finnish operation. A number of the dismissed employees argued that the decision to close the factory had been taken by the parent company in advance of the consultation commencing.

The ECJ stated that there must be an intention to make redundancies: the duty to consult collectively will be triggered when ‘strategic decisions’ or ‘changes in activity’ compel the employer to contemplate or plan for redundancies. In a group structure, once the parent company has identified the subsidiary affected by the proposed redundancies, the subsidiary has to start the consultation process. The relevant information need not be provided to the employee representatives at the start of the consultation process, but may be supplied as and when it becomes available. The subsidiary employer should complete the collective consultation process before the parent reaches its final decision to make redundancies so that the employer can explore ways of avoiding dismissals and mitigating the consequences of redundancies.

“Fit notes”

The new "fit note" system of sickness certification comes into force in April 2010.

Medical certificates provided by doctors to employers will be changed to allow doctors to indicate that the employee "may be fit for some work now". This replaces the "sick note" on which GPs can state only whether an employee is fit to return for work or not. GPs will also be able to print electronic statements instead of providing handwritten sicknotes. It will allow GPs to suggest changes to the employee's work environment or job role that could help in achieving an earlier return to work. Employers will not be under a duty to implement any of the suggested changes.

Conscientious objection is not enough

Ms L is a registrar who refused to conduct civil partnership ceremonies between same-sex couples on the grounds that to do so would violate her Christian beliefs. The Court of Appeal found that her employer had not discriminated against her on the grounds of her religion by requiring her to conduct these ceremonies as well as marriages, as shared out between registrars in the London Borough of Islington.

The Employment Appeals Tribunal (EAT) and the Court of Appeal found that because the council had required all registrars to carry out civil partnership duties Ms L had not been treated less favourably. The council’s requirement that all registrars perform civil partnership functions was a proportionate means of achieving the legitimate aims of promoting equal opportunities and fighting discrimination. The council may have acted insensitively, but it had not harassed Ms L on the grounds of religious belief.

The Court of Appeal found that it would have been unlawful discrimination under the 2007 Regulations for Ms L to refuse to perform civil partnership ceremonies. Therefore, the council was obliged to insist on her performing those duties, once it had designated her as a civil partnership registrar.

In another case, the EAT has upheld an employment tribunal decision that a Relate counsellor who refused to give advice to same-sex couples was not discriminated against because of his religious beliefs. Mr M, working for Relate Avon Ltd, trained to be a psychosexual therapist and his role was extended to giving advice on couples' sexual problems. When he refused to give advice to same-sex couples because of his religious beliefs, his colleagues complained and he was suspended. He was later dismissed.

The EAT found that Mr M could not show that religious belief was the ground of the employer’s action, and his claim for direct discrimination had been rightly rejected by the employment tribunal. The EAT then considered the above case of Ms L in which it had found that where a body such as a council has the aim of providing the full range of its services to all members of a community regardless, among other things, of their sexual orientation, it may properly insist on all staff participating in the services in question.

Long hair in the Police Force

Before he trained as a police constable, Mr D enquired whether or not his hair length would be acceptable to the police force. He was told the dress code policy required the standard of dress to be smart, fit for the purpose and to portray a favourable impression on the service; long hair was required to be neatly and securely fastened and worn close to the head. When he reported for training, with his hair slicked back and in a bun, he was told to have his hair cut or face disciplinary action. Because a female recruit in similar circumstances would not have been required to have her hair cut, Mr D complied but claimed unlawful sex discrimination and harassment. The employment tribunal dismissed his claim and he appealed.

The EAT held that the tribunal had found that the dress code policy was gender neutral. It had considered that a policy as a whole

• can be gender specific as well as gender neutral

• must be fair between the sexes

• satisfies society’s conventions

• meets the requirements of the relevant profession.

Under these terms, ordering Mr D to have his hair cut or face disciplinary action was not less favourable treatment, or treatment on the grounds of his sex. Therefore his claim of harassment also failed. The tribunal had been entitled to conclude that a female comparator who did not comply with a gender neutral policy would have been treated in the same way. The appeal was dismissed.

A proportionate response to admitted employee guilt

Mr K was a service technician at a garage. When he wired a van engine incorrectly, his employer issued him with a final written warning, to remain on his record for 12 months. Three months later, he passed a car during its MOT test when it should in fact have failed as a result of a fault that had arisen from repairs that Mr K had himself made to the car. He was dismissed on the ground of negligence.

He accepted responsibility for the damage to the car, but appealed that the dismissal was an extreme response in view of his employment record. His appeal was unsuccessful.

Although the employment tribunal agreed that the dismissal was unfair, the EAT held that the employer did not unfairly dismiss Mr K by, as he argued, failing to investigate in detail the nature of his misconduct in the light of his admission of guilt. Once the admissions were made by Mr K in response to the employer's questioning of him, it plainly was not required to take its investigations any further. It was, in particular, not required to investigate the seriousness of the defect.

EHRC wins legal case over BNP membership

In the Central London County Court on 15 October 2009, the Equality and Human Rights Commission (EHRC) won its legal case against the British National Party (BNP). It agreed then to adjourn the case until 28 January 2010, given that the BNP agreed to change its constitution and membership criteria. The Party also agreed not to accept any new members until its new constitution comes into force.

The BNP has agreed to use all reasonable endeavours to revise its constitution so that it does not discriminate, either directly or indirectly on any 'protected characteristic' – for example on the grounds of race, ethnic or religious status – as defined in clause 4 of the Equality Bill. These changes must be carried within three months.

The EHRC has said it will be monitoring the BNP's compliance with the court order on membership, and its other legal obligations, including to its constituents.