Employment Law

The core provisions of the Equality Act 2010 came into force on 1 October 2010. Andrew Egan, an employment lawyer with Thames Valley firm, Charles Lucas & Marshall, sums up the key points.

The Act replaces a number of major pieces of discrimination legislation and other measures which have been introduced over previous years to protect people from: unfairness and discrimination on the grounds of age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race, religion or religious belief; sex and sexual orientation.
These are now called ‘protected characteristics’. The Act covers the same areas safeguarded by existing law but also extends legislation to areas not included before – while introducing changes to current law.

The scope of the Act covers not just employment law but also laws governing the provision of goods and services and beyond. It harmonises current equality laws and extends some protection to areas that were not previously covered eg, associative discrimination, where a person is treated differently because a peer or colleague is someone covered by a protected characteristic, which applied only to three groups previously but has now been extended to seven.

Some employers already fear a fresh waive of discrimination and harassment claims and a rise in trivial claims and associated costs, potentially resulting in greater disruptive impact for small business and employers.
Under the legislation, workers can claim discrimination by association, and Employment Tribunals have been given wider powers to order changes in the workplace eg ordering management to undergo equality and diversity training.
Employers are barred from asking questions about a prospective employee’s health.  As well as limiting the questions employers can ask, the new legislation shifts the burden of proof on to the employer. It also covers a number of other areas including gender pay discrepancies, pay secrecy and protection for breastfeeding mothers.
The legislation is aimed at creating one uniform concept across different types of legislation.

As with the application of all new employment legislation, it is the large percentage of small and medium sized businesses which make up the business community who may be less able to cope and have fewer financial and other resources to adapt to the changes. If the legislation adds to the cost of employing people, then this will greatly impact upon small businesses, which are already fighting to adapt to difficult economic times and move to some economic recovery.

Smaller businesses are less likely to have comprehensive anti-discrimination and harassment policies already in place and are more likely to be affected. They do not have a large human resources departments, if at all, and will find it difficult to keep up with the changes, especially as a recent survey showed that a substantial percentage of HR managers do not fully understand the new legislation. As a result, employers will need to review and update their employment practices and should ensure their equal opportunity and recruitment policies are legally compliant.

Employers should not treat the legislation as requiring a bit of adjusting of the odd policy and then carrying on as normal. HR will need to revise policies and practices, provide training and ensure all levels of line management appreciate the standards expected of them to minimise risk and maximise opportunities – and to get the best out of the workforce and avoid extensive and expensive litigation.

As we have seen with previous legislation, time will tell for age discrimination for example, where the predicted outbreak of claims did not materialise initially and an increase in claims took some time to filter through.

There has already been a substantial increase in Tribunal claims of over 50 per cent in the last 12-18 months so the Tribunal system will be heavily stretched if an increase in claims follows.

The Act provides a single piece of legislation which will deliver consistency in a way that has been lacking and which should iron out the real anomalies which have arisen because of the different approaches there have been to different types of discrimination. This has been confusing and has generated litigation.

While it may mean extra work for employers, it should ensure that both employers and employees benefit from a fairer and more transparent workplace.

For further information please contact Andrew Egan on 01635 521212 or andrew.egan@clmlaw.co.uk

The recent case of Simpson v Endsleigh Insurance Services Ltd shows that a woman on maternity leave, working for a company making redundancies, does not have an automatic right to be offered a suitable, alternative role.

Regulation 10 of the Maternity and Parental Leave Regulations 1999 states that, if it is not practicable by reason of redundancy for an employer to continue to employ a woman on maternity leave, the employee is entitled to be offered a suitable available vacancy with her employer (or an associated employer) and not just invited to apply for that role).

The Regulation states that this right to a vacancy depends on two conditions:

• the work to be done must be both suitable for the woman and appropriate for her in the circumstances.

• the terms and conditions of her new job, including the capacity and place in which she is to be employed, must not be ‘substantially less favourable.’

This gives a woman on maternity leave priority over other employees who are at risk of redundancy, even if they are better qualified for the job.

The employer company in this case closed a number of branches including Mrs Simpson’s place of work in London, while she was on maternity leave. During the redundancy consultation process, she was invited to apply for a position in Cheltenham. She did not apply and claimed that the  correspondence had piled up at home while she was recuperating elsewhere. She argued that she should have been offered the new role in Cheltenham.

Endsleigh accepted that the new position was suitable for her, but argued that it was less favourable in relation to its terms and conditions; she would have to relocate and do a seven day shift. It argued therefore, that there was no obligation to offer her that new role.

The employment tribunal held that Mrs Simpson had not been unfairly dismissed and she appealed.

Mrs Simpson claimed that if there was a suitable post, this should have been offered to her even if the terms and conditions of the contract were less favourable.

The Employment Appeals Tribunal confirmed that both conditions under Regulation 10 had to be met. Further, the matter of the job’s suitability was one for the employer to determine and there was no requirement for the employee to be involved in this process.

The employer would have to consider what it knew about the employee’s personal circumstances and work experience, but it was up to the employer to decide whether or not that vacancy was suitable.

Despite this decision, employers still need to consider alternative vacancies in these circumstances very carefully. It may not always be clear what is suitable and favourable.

Employers should ensure they have evidence of why they consider a new role is not ‘suitable and appropriate’ and document their reasoning in case their decision is challenged. Ultimately, if an employer breaches Regulation 10 and then dismisses the employee on maternity leave, the dismissal will be automatically unfair.

Employers should avoid using social networking sites to vet job candidates as it could leave them vulnerable to discrimination claims.

Andrew Egan, an employment lawyer with Swindon/Newbury/Wantage law firm, Charles Lucas & Marshall says using sites such as Facebook, Twitter or My Space to find out more information on job applicants is potentially risky.

“It could easily to lead to discrimination claims,” he says. “We would advise employers not to obtain information this way – on either employees or job applicants.”

The Employment Practices Data Protection Code states that an employer should only use vetting where there are particular and significant risks involved to the employer, clients, customers or others, such as for jobs which involve working with vulnerable people or children.

“However, an employer should not place reliance on information collected from social networking sites because it could be potentially misleading,” added Andrew.

“Employers need to be careful because of mistaken identity, misleading and false information on such sites. If they were, for example, to find out information about a person’s sexual orientation, age or religious beliefs and it was felt this knowledge prompted an employer to discriminate against that person, then there could be grounds for a legal claim.

Dismissing employees for comments made about their employer on a social networking site can also be dangerous and lead to claims for unfair dismissal.

An employer could be asked to produce their IT records to prove that they did not discriminate based on an individual applicant’s personal profile.

If the advice is not to use these sites, then all line managers and recruiters should be informed and trained regarding equal opportunities. A general policy should be adopted, and a paper trail should be kept of assessments and information on prospective candidates.

For further advice or information on this subject, contact Andrew Egan on 01793 511055 or on
FREEFONE 0800 180 4835 or andrew.egan@clmlaw.co.uk

Employers who routinely use pre-employment health questionnaires in the recruitment process may need to dispense with these before the Equality Act comes into force on the 1st October 2010.

A recent survey has revealed that 65 per cent of HR Advisors ask candidates pre-employment health questions as a matter of course and nearly half of those employers surveyed also required that candidates complete health questionnaires before a formal job offer was made. A number of employers asked questions which were specific to the particular role, while a large percentage asked generic questions.

It will soon make it unlawful for an employer to ask a job applicant about his or her health before offering work and this includes conditional offers of work. It also covers applications for a position as a partner, as a contract worker, or for a personal or public office.

Most employers routinely ask job applicants pre-employment health questions as a matter of course, so the new law is likely to have wide implications. Employers are best advised not to send out pre-health questionnaires with employment application and information packs.

There is limited protection for employers. An individual job applicant can bring proceedings against a potential employer if he or she is refused a job after being asked a health related question, where the employer in reliance on that information rejects the job applicant, and the employer will contravene certain provisions of general anti-discrimination law.

An individual who thinks he was not offered a job because of an answer he gave to a health related question will be able to sue the potential employer. This is before a job offer is made. Disability discrimination rules applying after a job offer has been made will continue as at present.

An employer who is sued under the new provisions will have an uphill struggle to avoid liability, because the burden of proof will be reversed. An employment tribunal will assume that the employer has discriminated, unless it can show there was another reason for non-selection. Penalties for employers can include investigation by the Equality and Human Rights Commission.

There are 5 limited exceptions to the new rules, which make it lawful for an employer to ask health related questions before making a job offer where this is necessary to:
• find out whether reasonable adjustments have to be made to the normal job application process (for example, identifying special facilities to conduct interviews); or
• find out if the job applicant will be able to carry out a function that is intrinsic to the work concerned, for example heavy lifting; or
• monitor diversity in the range of people applying for work;
• take positive action to assist a disabled person where that is allowed by other provisions; or
• find out that a job applicant has a particular disability where the job genuinely requires that they have that disability, provided that that requirement is a “proportionate means of achieving a legitimate aim”.

Establishing whether a candidate is able to undertake selection tests or assessments, such as a fitness test to join the fire or police service, will also be exempt under the new legislation.

Employers need to re-consider their use of pre-employment health questions, and to urgently review any pre-employment questions. Unless they are job specific or otherwise exempt, withdraw them before the Act comes into force in October.

Once it comes into force the new law will apply to all employers, regardless of size. Most are likely to fall foul of it unless they change their recruitment policies and practices before recruiting new staff after 1st October (assuming the Act comes into force on that day).

Employers are strongly advised to take legal advice well in advance to ensure that their recruitment policies are “Equality Act compliant”.

With World Cup fever reaching a frenzy, many companies are bracing themselves for a volley of requests for time off, absenteeism and decreased productivity on Wednesday afternoon.

England’s crunch group game against Slovenia kicks off at 3pm and the potential loss to local business productivity could run into millions.

Andrew Egan, an employment lawyer with Newbury law firm, Chares Lucas & Marshall says there are steps companies can take to mitigate the damage.

“There is no legal requirement for employers to give time off on Wednesday,” he says. “However, a creative approach and willingness to compromise can pay dividends in terms of staff loyalty, morale and enthusiasm.”

Options include allowing staff to tune into the match on the radio or have a TV screen at work – or employers could relax the rules about the number of employees allowed to take holiday at the same time.

“Given the current economic climate, it is understandable if employers require staff to use holiday entitlement or work flexibly to make up lost time if they wish to take time off,” added Andrew Egan.

“Letting people start earlier so they can finish earlier is another option or letting people swap shifts is another possibility – not everyone is interested in football.”

Employers should remind employees of their sickness and absence policies in advance.

“There is no point being killjoys about this – if England win and go on to do well, the feel good factor could be worth millions to the economy and we will all be celebrating,” says Andrew Egan.

Contact: andrew.egan@clmlaw.co.uk

Andrew Egan, an employment lawyer with solicitors, Charles Lucas & Marshall, reports on a decision which could allow workers to apply for additional leave if they become sick on holiday.

The European Court of Justice (ECJ) decided on 10th September that where an employee falls ill while absent from work on holiday, the employer should provide additional holiday at a later time to the employee to compensate.

This case now raises doubts as to whether a worker who is on long term sick leave can be forced by the employer to take his statutory annual leave at the same time (thus saving the employer money on sick pay in some cases).

This decision should stop the questionable practice by which some employers sometimes deliberately require employees to take their holiday while they are off sick.

Sr Vicente Pereda had booked holiday leave for the end of July 2007. However he had an accident at work in early July. This meant he was away on sick leave and could not take most of the holiday.

His employer, without giving reasons, turned down his request for substitute holiday leave. He challenged this in a court in Madrid and the Court stayed proceedings, pending an answer from the European Court.

The ECJ said that:

“…… a worker who is on sick leave during a period of previously scheduled annual leave has the right, on his request and in order that he may actually use his annual leave, to take that leave during a period which does not coincide with the period of sick leave”It seems the Court’s conclusion is that not only are workers entitled to postpone holiday because of sickness but also that, if they fall sufficiently ill while absent on holiday to qualify for “sick leave,” then they will be entitled to insist on being allowed additional holiday to compensate after their recovery.

In practice it is impossible for an employer to properly monitor whether an employee on holiday was genuinely suffering from a condition serious enough to entitle them to sick leave. How will they know whether a worker is genuinely sick during periods of annual leave when employees are entitled to self-certify for the first seven days of sickness absence? It would open the door to abuse from false claims and from genuine claims, possibly from self-imposed accidents and sickness. It would certainly also lead to yet more unfair dismissal litigation.

Employers should remember, however, that they are entitled to monitor absence and any ‘patterns’ in absence, so that if a worker frequently claimed he was sick whilst on holiday, this should be investigated and where appropriate, disciplinary action may be taken.

Employers should also remember to apply the relevant sickness absence rules to any absence in these circumstances, particularly regarding notification of absence and reasons for absence. If the employee receives only statutory sick pay (‘SSP’) during sick leave, payment for any sick days should be made only at this rate, remembering of course that the first three days of sick leave are ‘waiting days’ where no SSP is payable.

For further advice or information on this subject, contact Andrew Egan on 01793 511055 or on
FREEFONE 0800 180 4835 or andrew.egan@clmlaw.co.uk

There has been increasing use of compromise agreements by employers as a result of the current economic climate and the subsequent redundancies and dismissals from employment of many workers.

A compromise agreement is a legally binding agreement under which an employee agrees not to make a claim in an employment tribunal or the courts against their employer in exchange for receiving a compensation payment. The payment is usually tax free and more money than the employee would otherwise be legally entitled to receive.

These agreements can be a means of terminating employment without really giving employees ‘a fair deal’ and an excuse to ‘get rid of’ employees for reasons other than redundancy or genuine economic reasons.

What sometimes appears to be an attractive termination package offered to an employee may not in reality, be fair for the employee. Three months pay might sound like a good offer but if an employee’s contractual notice period is three months, he or she may really only be getting that money tax free and without contract benefits for the three month notice period.

From a practical point of view, employees need to bear in mind that such a payment will not go far if they do not have another job to go to and that looking for another job often takes longer than expected.

It is therefore essential that employees seek advice about what they are agreeing to. It is, in any event, a legal requirement that before signing such an agreement, an employee take independent legal advice as to the meaning of the terms of the agreement and its affect on their employment rights. It is also customary and usual practice for employers to contribute towards the legal expenses incurred for the legal advice in connection with the agreement.

Compromise agreements are an effective tool in ensuring both employer and employee can resolve an issue fairly. The agreements are usually prepared by the employer’s solicitors and on terms offered by the employer. They should therefore not be taken as read or as necessarily the best deal on the table. If an employee does not take proper legal advice, he or she could be walking away with a settlement which is far from fair and which has not reviewed the alternatives.

Solicitors are best placed to advise employees on these matters and can negotiate on the employee’s behalf. We can advise on the taxation implications arising from a settlement payment and how that payment could be structured in the most tax efficient way. We can ensure that other matters, such as length of service, other contractual benefits, outplacement assistance and references, are all taken into account in the settlement, as well as advice on the effect of confidentiality obligations and post termination restrictive covenants.

For more information please contact Andrew Egan on 01793 511055 or on
FREEFONE 0800 180 4835 or andrew.egan@clmlaw.co.uk

If so, the first thing you should do is see a solicitor with employment expertise.

The law requires that you take independent legal advice before signing such a binding agreement with your employer. The agreement means that you are effectively being “bought off” – your employer is paying you a sum of money, usually tax free in exchange for you giving up your legal rights to claim against your employer in a Tribunal or Court.

This is perfectly legal and quite common and a sensible way of avoiding the costs and time associated with litigation, but you need to know what the agreement terms mean, how they affect you, what other options you may have, and is it the best deal or package for you.

Your solicitor can help you with these things and sometimes negotiate a better deal for you, as well as advise you regarding any tax implications and the effect of any restraints of trade, references etc.

For more information please contact Andrew Egan on 01793 511055 or on
FREEFONE 0800 180 4835 or andrew.egan@clmlaw.co.uk