Employment Update - November 2009
Monday 30th November 2009
Employment News
New Tribunal Opening Hours
Since 2nd November a limited number of Employment Tribunals have been piloting a new scheme in which they have been hearing claims from 6pm to 8pm, one or two evenings per week.
If the trial proves successful, claims heard in this new time slot will be more straight–forward claims, which can be heard before a judge sitting alone and do not require a tribunal panel or a full day's hearing.
The arrangement for hearing more complex tribunal cases during the day will continue as before.
Case Law
Indirect Racial and Sexual Discrimination can be considered together
In the case of Ministry of Defence v DeBique UKEAT/0048/09 the Employment Appeals Tribunal (EAT), upheld a decision by the tribunal that indirect discrimination on the grounds of both race and sex need not be considered in isolation from one another.
Facts
Miss DeBique served in the British Army as a Foreign and Commonwealth soldier, and was both a single mother and a citizen of St Vincent and the Grenadines. As a single mother she had struggled to meet the army's requirement that she be available 24/7, and as a citizen of St Vincent and the Grenadines she could not invite a relative to share her service accommodation to assist with childcare due to immigration restrictions.
After an initially sympathetic response from her employer, problems with childcare ensued, and Miss DeBique received an official warning based on her 'unsuitability' for being a soldier. After raising a grievance, Miss DeBique felt she had little choice but to leave the army and brought a claim against the Ministry of Defence (MOD) for indirect sex discrimination and indirect race discrimination.
The Original Decision by the Tribunal Upheld
The original tribunal considered whether two "provisions, criteria or practices" (PCPs) of the MOD indirectly discriminated against Miss DeBique:
- the requirement that soldiers be available 24/7; and
- a policy whereby soldiers with children were permitted, and encouraged, to have an adult relative living with them in their army accommodation to help with childcare, but which did not apply to foreign relatives of Foreign and Commonwealth soldiers due to immigration restrictions.
The tribunal had found that the first PCP did not discriminate against Miss DeBique because, although it put her 'at a disadvantage', it was a 'proportionate means of achieving a justifiable aim'. However, the tribunal found that the second PCP could not be justified in this way, and more significantly, that the combined effect of the two PCPs could be, and should be, considered.
The EAT, in rejecting nine grounds of appeal, agreed with the conclusions of the tribunal.
Comment
The tribunal's definition of the comparator or 'pool of comparison' for sexual discrimination, accepted by the EAT, was key to the judgment in this case.
Had the tribunal, or the EAT, compared 'male and female soldiers in the British Army' they would have been led towards the conclusion that any disadvantage suffered by females was a proportionate means of achieving the justifiable aim of 24/7 availability.
However, the actual pool assessed was 'those male and female soldiers in the British Army whose potential child carers are foreign nationals', hence linking both PCPs together. Using this comparator, the position of the females compared with the males within the 'pool' could have been alleviated by relaxation of either PCP.
Therefore, anyone involved in multiple indirect discrimination claims should consider which 'pool for comparison' would be most beneficial to their case.
What is uncertain is whether the reasoning in this case is relevant to direct discrimination and whether it will be accepted by the higher courts. In any event, case law may ultimately be overtaken by legislation. The government may accept a proposed amendment to the Equality Bill that would allow claims in relation to a combination of any two types of discrimination. A document outlining reaction to this proposal was published last month (SEE Equality Bill: Assessing the impact of multiple discrimination provision. Summary of Responses).
Employees with strong views may be protected by anti-discrimination law
An Employment Appeals Tribunal (EAT) judge has ruled in Grainger plc and others v Nicholson UKEAT/0219/09 that it is possible for environmentalism to amount to a 'philosophical belief' under the Employment Equality (Religion and Belief) Regulations 2003 (the Regulations). Therefore, an employer discriminating against an employee for holding such a belief, risks having damages awarded against it at an employment tribunal.
The Facts
Mr Nicholson was an executive of the property company Grainger plc (Grainger). He claimed that his selection for redundancy last year was a direct result of his views on the environment, which amounted to an all-encompassing blueprint for how we should all live our lives.
At a pre-hearing review in March it was found that the protection of 'belief ' in the Regulations extended to Mr Nicholson's views; 'belief' being defined as 'any religious or philosophical belief' in paragraph 2(1) of the Regulations.
Grainger appealed this decision.
The EAT decision
The EAT judge, Burton J, agreed with the tribunal judge that this stance did indeed amount to a 'philosophical belief' for the purposes of the Regulations. This was not to say that there were not limits placed on what constitutes a 'philosophical belief', it was just that Mr Nicholson's belief, if genuinely held, fulfilled the following criteria:
(i) it was genuinely held;
(ii) it was a belief and not an opinion or viewpoint based on the present state of information available;
(iii) it was a belief as to a weighty and substantial aspect of human life and behaviour;
(iv) it attained a certain level of cogency, seriousness, cohesion and importance; and
(v) it was worthy of respect in a democratic society, was not incompatible with human dignity and did not conflict with the fundamental rights of others.
Therefore, the case will proceed to a full hearing at which the genuineness of Mr Nicholson's belief, and whether he was discriminated against on the grounds of this belief, will be considered.
Comment
Concerns have been raised on the basis that the amendment to the definition of 'belief' within the Regulations, brought into force by the Equality Act 2006, has widened the scope of the legislation far beyond what was originally envisaged. However, Burton J was satisfied that the belief still had to be similar to a religious belief. Indeed, it is arguable that Burton J's threshold for a philosophical belief is higher than that which religious beliefs must satisfy.
Even so, the idea that a 'belief' can be based on scientific reasoning or be 'political', remains controversial. However, Burton J dealt specifically with the possibility of a racist or homophobic belief being protected, and ruled it out with the inclusion of criteria (v) above.
A belief in Spirtualism is similarly covered
Hot on the heels of the Nicholson case, the Employment Appeals Tribunal upheld a decision by the Manchester Employment Tribunal that a belief "that there is life after death and that the dead can be contacted through mediums" is similarly covered by the Regulations.
Alan Power, a former trainer dismissed by Greater Manchester Police, could not subsequently persuade a tribunal that he was discriminated against on the basis of his beliefs. However, it may well be that the central aim of the action had already been achieved in establishing that the Regulations offer protection to Spiritualists.
When is an employer exempt from making reasonable adjustments for a disabled employee?
In Secretary of State for the Department of Work and Pensions v Alam UKEAT/0242/09 the Employment Appeals Tribunal (EAT) has devised a new test for applying section 4A(3)(b) of the Disability Discrimination Act 1995 (DDA) relating to when employers are not required to make reasonable adjustments for disabled employees.
The Facts
Mr Alam was given a 12 month written warning for leaving work early without permission. A GP report, commissioned for the purposes of his claim under the DDA, stated that at the time of the incident, he was suffering from depression, resulting in severe headaches, loss of concentration and loss of temper.
The tribunal concluded that Mr Alam's offending behaviour could be attributed to his disability (depression). The employer had a 'provision, criterion or practice' (PCP) relating to employees leaving work early without permission. They had failed to make a reasonable adjustment to this PCP for Mr Alam, and could not be exempted under section 4A(3)(b) DDA, because they ought to have known about his disability.
Mr Alam's employer appealed - claiming that section 4A(3)(b) DDA had been wrongly applied.
The EAT Decision
The EAT upheld the appeal. It disagreed with the tribunal on certain findings of fact and, despite not being a grounds for appeal, argued that there had never even been an identifiable PCP.
The EAT also departed from the previous test set out in Eastern and Coastal Kent PCT v Grey [2009] IRLR 429. The test in Kent meant that an employer could never be excused of making reasonable adjustments if they knew, or ought to have known, about the relevant disability. Reasonable ignorance about the existence of the disability was one of four factors - all of which had to be met for an exemption.
However, in devising a new test, the EAT stated that the answer to the following two questions had to be 'no' in order for the employer to be exempt from making reasonable adjustments:
- Did the employer know both that the employee was disabled and that his disability was liable to affect him in the manner set out in section 4A(1)?
- Ought the employer to have known both that the employee was disabled and that his disability was liable to affect him in the manner set out in section 4A(1)?
The EAT concluded that in this case the employer ought to have known that the employee was disabled, but not that the disability would affect the employee in the way that it did. Hence, by changing the test, the employer now qualified for an exemption under section 4A(3).
Comment
This judgment will be a relief to employers, because they will not now be expected to make adjustments unless it is reasonable to assume that they knew about the effect of a disability. Moreover, the arguments supporting this interpretation seem robust, and capable of withstanding further legal challenges. As the EAT stated in its judgment, it is not possible to make 'reasonable adjustments' (as required by section 4A(1) DDA), unless an employer knows of the effect of a disability.
Legislation
Employment Reform outlined in the Queen's Speech
On 18th November the government outlined its legislative programme for the forthcoming parliamentary session in the Queen's speech. With only a few months left until the last date on which a general election can be called, it is uncertain which parts of the programme will actually get onto the statute book.
However, if passed, the following draft legislation will impact upon the employment sphere:
- the Financial Services Bill aims to tackle the politically sensitive issue of bankers' pay. New measures include giving the Financial Services Authority (FSA) the power to stop excessive payments and to cancel any pay awards which reward reckless risk-taking. A cap on bonuses, however, is conspicuously absent;
- the Equality Bill will continue its passage through parliament. It is a wide-ranging bill including reform of discrimination and pay discrepancy law (see the April, May and July editions of these Employment Updates for details);
- the Agency Workers Regulations 2010 will provide agency workers with the right to be treated equally compared to permanent staff in terms of pay, holidays and other basic conditions from 1st October 2011; and
- a Bribery Bill aims to tidy up existing law, but also introduces a new offence relating to companies that negligently allow employees or agents to pay bribes. Proof of adequate prevention procedures, however, may result in a successful defence to such a charge.
Apprenticeship, Skills, Children and Learning Act receives Royal Assent
The Apprenticeship, Skills, Children and Learning Act received Royal Assent on 12th November. This will create new rights and standardised procedures for apprenticeships from 2013. More imminent, however, is a new right for employees to request time off work to undertake study or training. This will apply to those employed in businesses with 250 or more employees from 6 April 2010, and to all employees from April 2011.
Government backs changes to the regulation of Employment Agencies
The government has published its response to its consultation on the Conduct of Employment Agencies and Employment Business Regulations 2003 ('the Regulations') which apply to the private recruitment industry.
Presently, under the Regulations agencies can charge upfront fees for the purposes of producing a publication to assist work-seekers in finding employment or for providing hirers with information. The consultation revealed that this has led to abuses by some agencies who have been amassing a lot of people on their books, producing poor quality publications and then doing precious little else for their clients.
However, it was decided that an outright ban on charging upfront fees would hit agencies such as casting directories, who use them as a legitimate part of their business. Therefore, the government has concluded that they will only be banned for photographic and fashion models, background artists, extras and walk-ons, but will continue to be permitted for other entertainers.
Some of the remaining upfront fees will be regulated more tightly - namely within the 'actor, singer, dancer or other performer' category. Amongst other measures, the statutory 'cooling off' period will be extended from seven to thirty days, and the worker will be able to see any publication produced by the agency before any money changes hands.
Several other recommendations were made of which two are particularly interesting. Firstly, the requirement for employment agencies to undertake suitability checks will be removed for most categories of workers. Those working with 'the vulnerable', however, will still need to be checked in terms of their experience, training, qualifications and any authorisation needed to fill the vacancy.
Secondly, it is proposed that job adverts must state whether the position is 'temporary' or 'permanent'. This will replace the old requirement to state whether the organisation is an 'employment business' or an 'employment agency'.
Conduct of Employment Agencies and Employment Business Regulations 2003: Government Response to Consultation of March 2009
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