Ashfords Solicitors - Employment Update

CASES UPDATE

Reference to years of experience in job advert is discriminatory

In the recent case of Rainbow v Milton Keynes Council the Employment Tribunal decided that an advertisement for a teaching vacancy advising that the role "would suit candidates in the first 5 years of their career" constituted indirect age discrimination.

Ms Rainbow (''the Claimant'') aged 61, was employed by Milton Keynes Council ("the Council") as a teacher and had 34 years of experience in teaching.

The Claimant took the decision to reduce her working hours from 4 days per week to 2 days per week. The Claimant allegedly received assurances from the headteacher that she would be offered first refusal on supply teaching jobs and cover for colleagues on sickness absence which would help her to supplement her 2 day income with further funds. However, despite these assurances, cover was sourced from an outside agency. Presumably this decision was taken to save expense; it would cost the Council £208 to employ the Claimant whilst it would only cost £147 to employ a teacher from an outside agency.

A teaching vacancy arose at the school that the Claimant worked for as a class 3 teacher. The advertisement stated that the role would "suit a candidate in the first 5 years of their career". The headteacher allegedly told the Claimant that they intended to appoint a candidate who would be on the same pay scale as the employee who was vacating the role. Nevertheless, the Claimant decided to apply for the role and requested an application pack. The Claimant was not provided with an application pack as the other candidates were, and was advised that in her case a letter of application would be sufficient.

The Claimant contacted the National Union of Teachers ("NUT") to complain about the advertisement, the NUT contacted the Council and requested that they amend the wording of the advertisement and give proper consideration to the Claimant's application.

The Claimant was not shortlisted for interview.

The successful candidate had approximately 4 years teaching experience and their salary was significantly less than the equivalent for Ms Rainbow.

Ms Rainbow brought an Employment Tribunal claim for direct and indirect discrimination against the Council, for not offering her the supply teaching jobs and a separate claim in connection with the teaching vacancy.

The Council argued that the costs had been a significant consideration in the decision to employ the candidate in question over Ms Rainbow, and that this decision was justified. Ms Rainbow argued that cost considerations cannot and should not be used to justify an act of age discrimination.

The Employment Tribunal held that the job advertisement and failure to shortlist Ms Rainbow for the role was indirect age discrimination. However, in connection with Ms Rainbow's separate claim, it was found that there had been no age discrimination in connection with the Council's decision to employ agency staff for supply work.

Furthermore, the Tribunal ruled that whilst age was not the direct reason for failing to shortlist Ms Rainbow for the vacancy, the decision to appoint a candidate in the first 5 years of their career constituted a provision, criterion or practice that potentially disadvantaged someone in Ms Rainbow's age group, since a teacher over 60 was highly likely to have in excess of 5 years teaching experience.

The Employment Equality (Age) Regulations 2006 prohibit discrimination on the grounds of age. However employers may be able to justify discrimination if they can show that the discriminatory act complained of was a proportionate means of achieving a legitimate aim.

The feasibility of putting forward a justification defence based on cost considerations was discussed in the case of Cross and others v British Airways Plc (2005) where it was decided that whilst costs could not be the main reason for taking a discriminatory decision it could be considered if it was "balanced" with other factors.

This may be a difficult line to tread for employers. However, as far as job advertisements are concerned, employers should be cautious about referring to a specific number of years of experience.

Agreement on holiday dates overrides statutory rules

In the recent case of Industry and Commerce Maintenance v Briffa, an employer provided the employee (Mr Briffa) one week's notice that they were terminating his contract of employment. Mr Briffa had 4 days' holiday outstanding, and his employer required him to take this during his notice period.

Mr Briffa made a claim to the Employment Tribunal, on the basis that his employer had breached the Working Time Regulations 1998 ("the Regulations"). Under the Regulations, an employer can specify the dates on which an employee takes their annual leave, however the employer must provide double the amount of notice than the annual leave period in question. In the current case, as the employer was requiring Mr Briffa to take 4 days' annual leave, 8 days' notice was required. Mr Briffa claimed that his employer had failed to give adequate notice and he could not therefore be compelled to take his annual leave during his last week of employment.

The Employment Tribunal ruled in favour of Mr Briffa, and ordered him 4 days' pay in lieu of the 4 days' holiday. The employer appealed against the decision. The employer argued that the Tribunal had erred in its decision as the contract of employment between Mr Briffa and his employer contained a contractual term confirming that Mr Briffa may be required to take his annual leave during his notice period. The employer argued that this contractual term overruled the provisions of the Regulations as it comprised a "relevant agreement" under regulation 2 and had the effect of varying regulation 15.

The employer's appeal was successful.

This case illustrates the importance of the inclusion of a provision in a contract of employment which provides the employer with the right to compel the employee to use accrued but untaken annual leave during their notice period.

Age-related comments can amount to harassment

In the recent case of McGee v Westcot Credit Services and others, the Employment Tribunal held that an employee aged 62 was subjected to harassment on the grounds of age. This case is one of the first cases of its kind, and the question hinged on whether or not various age-related comments made during an employee's review constituted harassment. In particular the employer had stated that "ambition is not a motivation....(due to age)".The Tribunal held that the comments did amount to harassment and the employee was awarded compensation for injury to feelings. However, this compensation was reduced by 50% as the employee had not pursued his right of appeal against the employer's decision to dismiss his grievance.

LEGISLATION UPDATE

Increase to National Minimum Wage

On 1 October 2008 the national minimum wage shall increase as follows:

Standard rate: £5.73 (rising by 21p from £5.52)
Development rate: £4.77 (rising by 17p from £4.60)
Young workers rate: £3.53 (rising by 13p from £3.40)

Sex Discrimination Act 1975 (amendment) Regulations 2008

New regulations came into force on 6 April 2008 which amended Section 6A of the Sex Discrimination Act 1975, see our Employment Update - March 2008 for full details. The changes relating to the removal of the distinction between employees on ordinary maternity leave and additional maternity leave will take effect for women whose expected week of childbirth starts on or after 5 October 2008.

In general terms this means that all rights and obligations occurring during the period of additional maternity leave and additional adoption leave will be brought in line with the rights enjoyed by employees during ordinary maternity leave and ordinary adoption leave. As a result, employees will now have a statutory right to benefit from the terms in their contracts of employment which would apply to them if they were at work (so far as these terms are not connected to remuneration, i.e. salary or wages) for the full one year of maternity leave.

There has been a lack of clarity in the past as to whether pension contributions fell within the definition of remuneration (and would therefore discontinue during maternity leave). However, following the ECJ cases of Boyle v Equal Opportunities Commission (1998) and Land Brandenburg v Sass (2005) it is generally accepted that pension contributions should continue to be paid.

In view of the fact that rights and obligations during additional maternity leave and additional adoption leave are being brought in line with the rights and obligations in ordinary maternity leave and ordinary adoption leave, it remains to be seen whether rights to receive continued pension contributions will be upheld.

In addition, the Maternity and Parental Leave etc and Paternity and Adoption Leave (Amendment) Regulations 2008 which came into force on 23 July 2008 will provide employees due to give birth or adopt on or after 5 October 2008 the right to receive the same terms and conditions during additional maternity leave and additional adoption leave as employees currently receive during ordinary maternity leave and ordinary adoption leave.

OTHER NEWS

Advocate General opinion on Heyday appeal

On 23 September 2008 the Advocate General handed down his opinion in the well publicised appeal by Heyday to the European Court of Justice for a review of the default retirement age. Heyday, part of Age Concern, is challenging the UK Government's implementation of an EU directive, which from October 2006 banned discrimination on the grounds of age, but kept 65 as a 'default' retirement age. Heyday say that the UK Government has not implemented the directive properly and that the default retirement age should be abolished.

The Advocate General's opinion , although not binding, may be an indication of how the European Court of Justice will find in December. There are currently approximately 260 cases in the Employment Tribunals which have been stayed pending the outcome of this appeal.

Summary of Advocate General's Opinion

The Advocate General has sided against Heyday and recommended that the European Court of Justice dismiss the Appeal brought by Heyday which centres on the implementation of Regulation 3 and 30 of the Employment Equality (Age Discrimination) Regulations 2006.

In summary the advocate general has recommended:

1) It is legitimate to allow a general justification defence. Furthermore that it is an unnecessary requirement for the regulations to define the types of conduct which can be justified.

2)That Regulation 30 (the main regulation being contended by the Heyday appeal) which allows the dismissal by employers of employees who are aged 65 and over for reasons of retirement is not incompatible to the Equal Treatment Framework Directive on the proviso that it is objectively justified.

Watch this space for further information...

ACAS launch new guide on pay grading systems

ACAS has recently released a new job evaluation advice booklet to help businesses to protect themselves against equal pay claims. The guide is intended to help employers to consider the relative benefits and associated risks of undertaking job evaluation. However, implementation of a job evaluation may give rise to a number of difficulties, The ACAS publication also describes best practice for how a job evaluation risk analysis should be designed and introduced.

Frank Blair (Director of ACAS, Scotland) who helped develop the guide stated:

"employers sometimes find it hard to justify their grading and pay systems. Putting in place a job evaluation scheme can remedy this and can also help prevent equality and HR related problems from arising."

A copy of the ACAS guide can be downloaded from http://www.acas.org.uk

Channel 5 to be sued for age discrimination

Selina Scott (57) had announced that she is suing Channel 5 for age discrimination. Ms Scott alleges that she had been lined up as maternity cover for Natasha Kaplinsky on 5 News but claims that Channel 5 went back on the agreement, and instead announced that Natasha Kaplinsky would be replaced by Isa Traquair (28) and Matt Barbet (32). Channel 5 advised that they shall be vigorously defending these allegations.

Watch this space for further information...

Changes to income tax allowances

On 7 September 2008 the Government increased the personal tax allowance by £600 from £5,435 to £6,035. This new allowance is to be backdated to 6 April 2008. In addition to the increase in personal allowance, the government has also decreased the basic rate tax band from £36,000 to £34,800, this has also been backdated to 6 April 2008.

The effect on employers is that PAYE sums collected by employers shall be less than the PAYE refund they are due to pay for employees. Funds to cover these refunds can be obtained from HM Revenue and Customs. Further information about these new changes can be found on HM Revenue and Customs website at http://www.hmrc.gov.uk/employers/epa-understanding.htm

Key Contacts

Employment Update - September 2008