Ashfords Solicitors - Employment Update

CASES UPDATE

ECJ rules that "associative disability discrimination" is unlawful

The ECJ has followed the Advocate General's opinion and ruled that the EC Equal Treatment Framework Directive provides protection against "associative discrimination" in respect of direct discrimination and harassment. "Associative discrimination" is discrimination against a non-disabled person on grounds of their association with a disabled person. Therefore, less favourable treatment of an individual on grounds of the disability of a person closely associated to them is unlawful.

In Coleman v Attridge Law, Ms Coleman alleged that she was directly discriminated against and harassed by her former employers on grounds of the disability of her son, for whom she was the primary carer. At the employment tribunal stage, the tribunal agreed that a "plain reading" of the Framework Directive suggested that discrimination by association was intended to be covered, but on a literal reading of the Disability Discrimination Act ("DDA"), such discrimination was not prohibited. The EAT referred the matter to the ECJ who have held that the Framework Directive does extend to associative discrimination. This potential extension to the law is most likely to favour carers. Until now, carers have been entitled to limited time off to deal with emergencies affecting those for whom they have responsibility and the right to apply for flexible working.

Commentators have indicated that, if the DDA is interpreted to provide protection for those who are associated with someone with a disability, carers could potentially have a new cause of action if they are treated less favourably in connection with their caring responsibilities. Depending on the circumstances, it is also conceivable that employers may face claims for disability discrimination where they reject requests for flexible working by employees who are primary carers of disabled individuals.

The ECJ found that in a situation like that of Ms Coleman, although the person who is the subject of direct discrimination or harassment is not themselves disabled, the disability is the groundfor the less favourable treatment or harassment suffered. Article 1 of the Framework Directive seeks to combat all forms of discrimination on the grounds of disability (among other things) and is not defined by reference to a particular category of person. This interpretation is supported by Article 13 EC, which constitutes the legal basis for the Framework Directive and confers on Member States the competence to take appropriate action to combat discrimination.

The UK Government argued that the fact that the Framework Directive includes provisions which apply only to disabled people (such as the provisions dealing with reasonable adjustments) meant that it cannot be interpreted as applying to non-disabled people. The ECJ rejected this submission and held that the presence of these disability-specific provisions did not lead to the conclusion that the principle of equal treatment had to be interpreted strictly to apply exclusively to disabled people. This was supported in the preamble to the Framework Directive, which refers to the importance of combating "every form of discrimination, including the need to take appropriate action for the social and economic integration of ... disabled people".

The UK Government also argued that it followed from the decision in Chacon Navas v Eurest Colectividades (in which the ECJ held that a person dismissed for sickness was not protected by the disability provisions of the Framework Directive) that a strict interpretation was required in relation to the concept of disability and its implications on the employment relationship. The ECJ rejected this interpretation of Chacon Navas saying it did not hold that the principle of equal treatment and the scope of the Framework Directive must be interpreted strictly.

The objective of the Directive to combat discrimination on certain grounds would be undermined and the protection which it guarantees would be reduced if a claimant in Ms Coleman's situation could not claim for discrimination against her.

As Ms Coleman's employer was not a public body, the next stage in her case will be to ascertain if the DDA can be read purposively, so as to conform with the intent of the Framework Directive which it is supposed to implement. The case will now be referred back to the EAT.

Union found to have indirectly discriminated against female members with equal pay claims

In Allen and other v GMB the Court of Appeal has upheld the Claimants' appeal and found that the GMB did indirectly discriminate against female union members by recommending acceptance of a 'single status' pay deal which grossly underestimated the compensation which should be due to female equal pay claimants. In reaching this decision, the Court of Appeal upheld the employment tribunal's ruling that although the union was pursuing a legitimate aim, its manipulation of its female members into settling their equal pay claims had not been a proportionate means of achieving that aim and therefore was not justified. See our August 2007 Update (opens in a new window) for the background to the appeal.

The Court of Appeal refused permission to appeal to the House of Lords, meaning that compensation may now fall to be assessed against the GMB. It is believed that there are roughly 4,000 claims outstanding against the GMB and some 7,000 against UNISON.

In 1997 public service trade unions and local authority employers entered a national collective agreement to introduce a single set of terms and conditions applicable to all local authority employees ("the Green Book"). As a result, each local authority undertook a job evaluation study ("JES") to assign its jobs on the Green Book pay scale.

Members of the GMB employed by Middlesbrough City Council ("the Council") presented the union with conflicting objectives: female members who argued they had equal pay claims against the Council wanted up to six years' back pay, while members whose jobs had been downgraded in the JES wanted pay protection going forward.

The GMB gave priority to pay protection and equal pay going forward rather than maximising claims for past unequal work. It recommended that female members accept the Council's offer to settle their equal pay claims at 25% of their value. As a result, five test claimants ("the Claimants") argued that the manner in which the GMB had dealt with their equal pay claims had directly and indirectly discriminated against them on grounds of sex and that the GMB had victimised them.

The employment tribunal rejected the direct discrimination claim but upheld the claims of indirect discrimination and victimisation. It held that the GMB had operated a potentially discriminatory provision, custom or practice ("PCP") but that the PCP could not be justified. The "worse aspect of the case" was that GMB's positive manipulation of its female members by suggesting that the offer was acceptable and by leading them to believe that, if they pressed for more, it might lead to job losses which would result in them being regarded as traitors by their colleagues.

The EAT upheld GMB's appeal against the tribunal's decision but gave the Claimants leave to appeal its decision on indirect discrimination. The Court of Appeal then found that the tribunal had not made an error in law when it found that the means adopted by the GMB were disproportionate to achieve its aim of protecting all losers to the greatest extent possible, striking a balance between back pay, future pay and pay protection.

LEGISLATION UPDATE

Equality Bill

The Government has published its response to consultation on the Equality Bill. We discussed some of the proposals in our June 2008 Update (opens in a new window) , but the response also includes further details on the Government's proposals for simplifying equality law.

Amongst other things the response states that the Government will:

harmonise the definition of indirect discrimination across all strands of discrimination and extend protection from indirect discrimination to transsexuals;

extend the protection against harassment in the Race Relations Act 1976 to harassment on grounds of colour and nationality;

introduce the 'general occupational requirement' test across all discrimination except disability;

consider whether to allow discrimination claims to be brought on combined multiple grounds; and

consider extending employers' liability for persistent harassment of employees by third parties in relation to race, disability, sexual orientation, religion or belief and age, as currently exists in relation to sex or gender reassignment.

The response also rules out the introduction of hypothetical comparators in equal pay claims and statutory protection against discrimination on grounds of genetic predisposition.

Rights for agency workers

Following the agreement reached in May regarding increased rights for agency workers (see our May 2008 Update (opens in a new window) ), the EU Council has agreed points of principle for the proposed Agency Workers Directive, largely reflecting the CBI/Trades Union agreement.

A key difference to the previous agreement, is that under the proposed Directive, agency workers would gain entitlement from day one (the UK agreement is subject to a 12 week qualifying period). However, the UK would still be able to impose the qualifying period as a derogation has been allowed to permit a longer qualifying period.

There were also a number of additional points agreed including that temporary agency workers should be informed about permanent employment opportunities arising in the user enterprise and that they should have equal access to collective facilities (such as canteen, child care facilities or transport services). Also an obligation would be imposed on Member States to improve agency workers' access to training and child care facilities in the periods between assignments so as to increase their employability. Member States would also need to ensure that penalties are in place for non-compliance by employment agencies and enterprises.

Assuming that this draft is adopted by the European Parliament, UK implementing legislation will be drafted and debated in mid 2009 and is expected to come into force in either April or October 2010.

Amendment of Working Time Directive: draft published to reflect recent political agreement

The EU Council has also published its proposed wording for a Directive to amend the Working Time Directive (the Directive which amongst other things imposes the 48-hour limit on the working week). The proposals, whilst retaining the ability to opt-out of the 48-hour week, place further restrictions on when this can be exercised. The proposals also provide for a distinction between active and inactive on-call time, and the possibility of the latter being disregarded as working time.

In 2003, the European Commission made a number of proposals for reform of the Working Time Directive 93/104/EC (WTD) following its review. The proposals included provisions to address the difficulties that had been experienced, particularly in the healthcare sectors, by the ECJ decisions in SiMAP v Conselleria de Sanidad y Consume de la Generalidad Valenciana, and Landeshauptstadt Kiel v Jaeger. The Commission was also particularly concerned by the increasing use (and possible abuse) of the provisions permitting individuals to opt-out of the 48-hour limit on average weekly working hours (the "opt-out"), and recommended that a number of safeguards be introduced.

The European Parliament, however, took a harder line and voted in 2005 that the opt-out should be scrapped entirely. Since that time, the UK and some other EU countries that make significant use of the opt-out have blocked any erosion of the opt-out, preventing progress on this and a number of other issues.

After several years of stalemate, ministers at the EU Employment, Social Policy, Health and Consumer Affairs Council meeting on 9 and 10 June 2008 finally reached political agreement on these issues, and also on the proposed Temporary Agency Workers Directive above. In particular, it was agreed that member states would be allowed to continue using the opt-out from the 48-hour week.

The main provisions of the revised Directive are as follows:

On-call working time and rest periods

Active on-call time must be counted as working time. However, Member States can chose whether to count inactive on-call time (defined as time when the worker is on call but not effectively required to carry out his activities or duties) as working time or not. However, where it is not counted as working time, it cannot be counted as rest time.

Under the proposals, compensatory rest will need to be given "within a reasonable time" rather than necessarily before the worker commences the next shift as is presently the case.

Individual opt-out

Whilst the opt-out has been retained, there were a number of key reforms proposed:

The opt-out will be valid for one year, so will need to be renewed annually.
Any opt-out will be void if signed at the same time as an employment contract or within four weeks of starting work. This is a key proposal since it is currently standard practice to require workers to sign an opt-out at the same time as their employment contract or offer letter.
A worker can withdraw their opt-out with immediate effect during the first six months after signing the opt-out or up to three months after the end of any probationary period, whichever is longer.
Otherwise the maximum notice that an employee withdrawing their opt-out must give will be reduced to two months rather than the current three months.
A new protective cap of 60 hours per week will be introduced for workers who have opted-out unless social partners agree otherwise.
A new cap where inactive on-call time is counted as working time of 65 hours per week will be introduced for workers who opt-out.
Protection from detriment for workers who refuse to opt-out or withdraw their opt-out.
Requirement on employers to keep records of hours worked by opted-out workers.

The proposed wording will be debated by the EU Parliament and may be amended before being formally adopted at a future meeting of the Council of Ministers.

OTHER NEWS

Tribunals Service Annual Report 2007-08

The Tribunals Service has published their annual report which shows that the number of claims received were 42% higher than anticipated, being 189,300. This is believed to be a result of the number of multiple claims that were presented over the period. Of these 189,300 claims presented, 86,237 were disposed of by Tribunals. In relation to timescales, the Tribunals achieved their target with 79% of employment tribunal cases being heard within six months of receipt (beating their target of 75%) and 88% of written decisions being delivered within four weeks of the hearing.

Acas urge small businesses to mediate

The conciliation service Acas has urged small businesses to consider using mediation to solve workplace disputes and avoid tribunal costs in light of recent research. The study which polled 500 decision makers from small businesses found that most managers only see mediation, which is when an impartial party is brought in to help those in dispute to resolve their differences, as a last resort. Only 7% of those surveyed had used mediation as a means to solve disputes and there was a belief amongst 52% of the respondents that mediation was only suitable for large organisations.

Ashfords is regulated by the Solicitors Regulation Authority. The information in this article is intended to be general information about English law only and not comprehensive. It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.

29th July 2008

Key Contacts

Employment Update - July 2008