Post on 13-Aug-2015
Employment Law Update & Sub-conscious Discrimination
Jennifer Skeoch & Morag Hutchison
28 April 2015
AberdeenEdinburghGlasgow
Today’s Agenda
Shared Parental Leave
New Family Leave EntitlementsMothers
Paid time off to attend
2 weeks – paid
Further 50 weeks maternity leave
or Up to 50 weeks SPL (shared with father)
Up to 37 weeks paid
18 weeks - unpaid
AntenatalCompulsory
LeaveMaternity/Shared
Parental LeaveParental Leave
New Family Leave EntitlementsFathers
Unpaid time off to attend
2 weeks - paid
Up to 50 weeks SPL - shared with mother
Up to 37 weeks paid
18 weeks - unpaid
Antenatal Paternity LeaveShared Parental
LeaveParental Leave
Leave can be taken concurrently
Complex Notification Requirements
Three separate notices required to take leave:
Employer’s Discretion Limited
Employer’s Discretion Limited
Triple Trouble?
Pay
Actions Required
Tribunal Reform
Changes to the Tribunal Process
Stages of Early Conciliation
When Mandatory Early Conciliation Will Apply
Benefits of Early Conciliation
Effect of the fees
• In March 2014, the Ministry of Justice published statistics for October to December 2013 showing a 79% drop in employment tribunal claims
• In February 2015, the Business Secretary, Vince Cable MP, launched a review of the impact of employment tribunal fees
• On 1 April 2015, Unison was granted permission to take their judicial review to the Court of Appeal
Discrimination
Discrimination Update: Caste
• “There is no agreed sociological or legal definition of caste, but a number of salient features can be identified. Castes are enclosed groups, historically related to social function, membership of which is involuntary, hereditary (that is determined by birth) and permanent…Unlike class, it is not generally possible for individuals or their descendants to move into a different caste. Caste is governed by rules relating to commensality (food and drink must only be shared by others of the same caste) and is maintained by endogamy (marriage must be within the same caste). It entails the idea of innate characteristics and hierarchically graded distinctions based on notions of purity and pollution, with some groups considered to be ritually pure and others ritually impure. A crucial feature of caste in South Asia is the concept of “Untouchability”, whereby certain people are considered to be permanently and irredeemably polluted and polluting, hence “untouchable”, with whom physical and social contact is to be avoided. Despite the notional nature of caste, Untouchability is conceptualised as an innate physical property separating the Untouchables from the rest of society”
– Annapurna Waughruay, in “Capturing Caste in Law: Caste discrimination and the Equality Act 2010” (2012) 14 Human Rights Law Review 359-379
Chandhok and another v Tirkey
Facts
• Ms Tirkey worked for Mr and Mrs Chandhok between 2008 and 2012 as a domestic worker.
• Her caste is the Adivasi, which is known as a "servant caste". Adivasis have been recognised as being at the lowest point of almost every socio-economic indicator.
Chandhok and another v Tirkey
• After bringing other claims in the tribunal, Ms Tirkey added a complaint of caste discrimination
• She claimed that the reason why she was recruited and treated in the manner alleged was that the Chandhoks thought she was of a lower status to them, which was infected with considerations of caste.
Chandhok and another v Tirkey
Decision• The Employment Tribunal refused to strike out the
claim for caste discrimination.
• Mr and Mrs Chandhok appealed, arguing that caste was not included as a protected characteristic in section 9(1) of the Equality Act 2010
• The EAT dismissed the appeal and permitted the caste discrimination claim to proceed to full hearing.
Caste Discrimination: future developments
• Consultation on proposed legislation making caste discrimination unlawful was planned to take place in the autumn of 2014 but has not yet begun
• This power was introduced on 25 June 2013 but has not yet been exercised by the government.
• In February, the Government confirmed that it has no "immediate" plans to introduce legislation making caste discrimination a form of race discrimination
Discrimination Update: Disability
• Is obesity a disability?
• In December 2014, the European Court of Justice ruled:– It does not qualify automatically as a disability;
BUT – Equally, it is not excluded
• Critical issue is the effect of any impairments rather than their cause
Issues for employers:
• Be aware of these issues when managing sickness absence or determining fitness for work
• Duty to consider reasonable adjustments to working practices and/or workplaces?
• Obesity in oil and gas sector: regulations prohibiting passengers with certain body size
• Duty to help employee lose weight?
Discrimination Update: Disability
• Is Type 2 Diabetes a disability?
• No. The EAT in Metroline Travel Ltd v Stoute held that Type 2 diabetes per se does not amount to a disability
Metroline Travel Ltd v Stoute
Facts:• Mr Stoute was employed as a bus driver for approximately 21 years
before he was dismissed for gross misconduct.
• He suffered from Type 2 diabetes and brought a claim for disability discrimination (among other things)
• The employee followed a diabetic diet designed to avoid sugary foods such as fizzy drinks (but had no other treatment)
• At a preliminary hearing, it was held he was disabled
• At the full hearing his complaints were all dismissed.
Metroline Travel Ltd v Stoute
Decision• Metroline appealed as it had a workforce with a number of people
who suffered from Type 2 diabetes• They were worried it would be used by other employees to support
an argument that they were disabled
• The EAT held that “treatment” was not wide enough to encompass an abstention from sugary drinks:
"...while a particular diet may be regarded as something which is to be ignored when considering the adverse effects of a disability, I do not consider that abstaining from sugary drinks is sufficient to amount to a particular diet which therefore does not amount to treatment or correction”
Discrimination Update: Religion or belief
• Is a “a profound belief in the proper and efficient use of public money in the public sector” protected as a philosophical belief?
• No, according to the Employment Tribunal in Harron v Chief Constable of Dorset Police.
Harron v Chief Constable of Dorset Police
Facts
• Mr Harron was employed by Dorset Police. He suffered from OCD and bipolar disorder.
• He became angry and frustrated at seeing money he thought was being wasted (bureaucracy, admin, projects, over paid staff)
Harron v Chief Constable of Dorset Police
Decision
• While the judge was satisfied that Mr Harron's belief was genuinely held, it was not a belief as it was entirely confined to the workplace.
• It failed to satisfy the “weighty and substantial aspect of human life and behaviour” test.
Covert Recordings
Covert Recordings
• “Goldman Sachs banker settles £1m claim after accusing employer of sexism”
Covert Recordings
• Can covert recordings made by an employee of private discussions of the panel at her grievance and disciplinary be admitted in evidence at a tribunal?
• Yes, said the EAT in Punjab National Bank (International) Limited v Gosain
Punjab National Bank v Gosain
Facts• Ms Gosain was employed by the bank from May 2011 until
her resignation in January 2013.
• Prior to her resignation, she attended both a grievance hearing and a disciplinary hearing with the bank.
• She secretly recorded both the public discussions at the hearings and the private conversations of the panels.
• Ms Gosain subsequently brought claims of sexual harassment, sex discrimination and constructive unfair dismissal.
Punjab National Bank v Gosain
Decision
• The EAT held that the recordings were admissible as evidence at the final hearing and it would be for the tribunal hearing the case to assess the cogency of the recordings and their impact on the issues
Whistleblowing
Whistleblowing
• Are disclosures made in the interest of 100 senior managers "in the public interest” for the purposes of whistleblowing legislation?
• Yes, held the EAT in Chesterton Global Ltd (t/a Chestertons) and another v Nurmohamed
Chesterton Global Ltd (t/a Chestertons) and another v Nurmohamed
Facts
• Mr Nurmohamed was employed as a senior manager at the Mayfair branch of Chestertons, the estate agent
• He made disclosures to the area director and the HR director about manipulation of the company's accounts which had an adverse effect on his commission income
• Mr Nurmohamed was dismissed
Chesterton Global Ltd (t/a Chestertons) and another v Nurmohamed
Decision• The employment tribunal found that he had been
automatically unfairly dismissed, and that Chestertons had subjected him to detriments on grounds that he had made protected disclosures
• Chestertons appealed on the grounds that 100 senior managers were not a sufficient section of the public
• The EAT held that the public interest test was satisfied
Collective Redundancy
Collective Redundancy
• Collective consultation obligations require consultation with appropriate representatives where 20 or more dismissals are proposed in a 90 day period any one “establishment”
• What is an establishment?
Collective Redundancy
• In USDAW v Ethel Austin Ltd (in administration) and another case (the Woolworths case) the EAT held:
– It had to delete the words “at one establishment” from the UK law in order to comply with the European law
Collective Redundancy
• On 5 February 2015, Advocate General Wahl issued his opinion which disagreed with the EAT's decision
• The full decision of the ECJ is expected imminently
• A sigh of relief for employers?
General Election & Employment Law
General Election 2015
• Key issues:
– Zero Hour Contracts
– National Minimum Age
– Equality and Discrimination
– Family rights
– Tribunal fees
– Agency Workers and Apprenticeships
– Trade Unions
Zero Hour Contracts
Conservative Labour Lib Dems SNP UKIP
Eradicate exclusivity clauses in zero hour contracts
Workers given regular contract after 12 weeks
Create right to request fixed term contract
Supports tough action to end exploitative zero hours contracts
Businesses with 50 people to give workers contract after one year on request
National Minimum Wage
Conservative Labour Lib Dems SNP UKIP
Increase to £6.70 by autumn 2015 and over £8 an hour by the end of 2020
Increase to more than £8 an hour by October 2019
Low Pay Commission to consider ways of increasing without damaging employment opportunities
An increase in the minimum wage to £8.70 by 2020
Raise the tax-free allowance to £13,000 so people on the NMW do not pay any income tax
Gender Equality
Conservative Labour Lib Dems SNP UKIP
Require companies with more than 250 employees to publish the difference between the average pay of their male and female employees
Require large companies to publish their gender pay gap
Introduced new rules on gender pay transparency
Push for 50:50 representation on public and private boards, and action to secure equal pay
Discrimination, Equality and Human Rights
Conservative Labour Lib Dems SNP UKIP
Transform policy to halve the disability employment gap
Race equality strategy to ensure that institutionsare more representative
One board members to be a BAME person &shortlist any qualified disabled candidate
Support calls to establish a Race Committee
Allow British businesses to employ British citizens first
British Bill of Rights to replace the Human Rights Act 1998 (HRA)
Preserve the HRA
Keep the HRA and introduce Freedoms Act
Preserve the HRA
Replace HRA with Bill of Rights
Family Rights
Conservative Labour Lib Dems SNP UKIP
Free childcare increased to 30 hours for three and four year olds of working parents
Free childcare increased to 25 hours for three and four year olds of working parents
Free childcare for 20 hours a week for all parents of children aged between two and four
Double paid paternity leave from 2 to 4 weeks and increasing paternity pay to more than £260 a week
Expand shared parental leave by additional month of paternity leave to fathers
Tribunal Fees
Conservative Labour Lib Dems SNP UKIP
Abolishing the tribunal fee system
A review of employment tribunal fees
Abolishing tribunal fees
Agency Workers and Apprenticeships
Conservative Labour Lib Dems SNP UKIP
3 million apprenticeships over the next five years
Create thousands of apprenticeships in public sector
Double amount of businesses that hire
Support an increase to an increase to 30,000 Modern Apprenticeships
UKIP will repeal the Agency Workers Directive
Illegal to use agency workers to undercut wages and banning agencies from exclusively recruiting from overseas
Trade Unions
Conservative Labour Lib Dems SNP UKIP
Tougher threshold for strike action in the health, transport, fire and education sectors
Allow subscriptions to be deducted from salary automatically
Encourage wider trade union participation
Allow employers to use agency workers to cover striking employees
Electronic voting in trade union ballots through
Oppose Tory plans to furtherrestrict the right to strike and support trade unions
Sub-conscious Discrimination
Trends in Discrimination Claims
Discrimination Protection: Key Concepts
Direct Discrimination
Less favourable treatment: some examples
Reason for less favourable treatment
Subconscious Discrimination: judicial guidance
Subconscious Discrimination
Key Issues for employers
Practical ways of minimising risks
Q A
Jennifer SkeochJennifer.skeoch@burnesspaull.com0141 273 6782
Morag Hutchisonmorag.hutchison@burnesspaull.com0131 473 6029
AberdeenEdinburghGlasgow