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Quarterly Bulletins |
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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...".
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News Bytes |
Index
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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
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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. |
| Apprenticeships,
Skills, Children and Learning Act 2009 – Section 203 |
12
January 2010 |
| Enables
local education authorities to give a warning notice to a governing
body that has failed to comply with the rules regarding teachers' pay
and conditions, and sets out the powers of intervention that will be
available in this situation |
| Decrease
of maximum unfair dismissal compensatory award |
1
February 2010 |
| The
limit on the compensatory award for unfair dismissal decreases from
£66,200 to £65,300, applicable where the event that gives
rise to the award or payment occurs on or after 1 February 2010 |
| Single
Equality Act |
Spring
2010 |
Existing
discrimination legislation distilled into a single Equality Act in
order to provide a simpler, more consistent legal framework for
preventing discrimination |
| Additional
Paternity Leave and Pay |
April
2010 |
| To allow fathers up
to six months' additional paternity leave if the mother returns to
work before using her full entitlement to statutory maternity leave
during the second six months of the child's life and may be paid if
taken during the mother's statutory maternity pay period. If
implemented in April 2010, the new right will be available to parents
of children due on or after 3 April 2011 |
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Disclaimer
These briefing notes are for guidance purposes only and should not be regarded as a substitute for taking legal advice. Further details in each case are necessary for a complete understanding of the subjects covered by the commentary. |
| News Bytes updated January 2010 |
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